Overview

From February 2023, most employees will be entitled to 10 days’ paid family and domestic violence leave (FDVL), instead of the existing entitlement to five days of unpaid FDVL. This enhanced entitlement follows the recent passing of the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (Cth) by both houses of Federal Parliament.

What is the new entitlement to FDVL?

The National Employment Standards will be amended to provide 10 days of paid FDVL. Currently, employees are only entitled to five days of unpaid FDVL.   

The 10 days paid FDVL will be:

• available to full time, part time and casual employees;
• available in full at the start of each 12 month period of the employee’s employment (this means the leave is not accumulated from year to year); and
• payable at the full rate the employee would have earned had they worked instead of taking the leave. 

For casual employees, the rate of pay will be worked out as if the employee had worked their rostered hours.  An employee is taken to have been rostered to work hours if the employee has accepted an offer to work those hours (the offer and acceptance can, but does not have to, be in writing or by phone).

When will these changes commence?

To provide time for payroll and other necessary adjustments, the new paid entitlement will commence on 1 February 2023 for non-small business employers, and 1 August 2023 for employers who meet the definition of ‘small business employer’ as at 1 February 2023.  A ‘small business employer’ is an employer who employs fewer than 15 full time, part time or regular casual employees at a particular time. 

What does ‘family and domestic violence’ mean under the Fair Work Act 2009 (Cth)?

Currently, the definition of family and domestic violence only relates to the behaviour of a ‘close relative’.

The definition will be expanded to include, ‘violent, threatening or other abusive behaviour by a close relative of an employee, a member of an employee’s household, or a current or former intimate partner of an employee, that seeks to coerce or control the employee, and causes the employee harm or to be fearful.’

When can employees take FDVL?

An employee may take FDVL if the employee is experiencing family and domestic violence and it is impractical for them to do something to deal with family and domestic violence outside their work hours, such as:

• arranging for the safety of the employee or a close relative (including relocation);
• attending court hearings, counselling, or appointments with medical, financial or legal professionals; or
• accessing police services.

An employee may take paid FDVL as:

• a single continuous 10 day period;
• separate periods of one or more days each; or
• any separate periods to which the employee and the employer agree, including periods of less than one day.

Where to from here?

There is nothing employers need to do apart from familiarising themselves with these recent changes in the event an employee needs access to FDVL. Employers may wish to update their employment agreements or policies to reflect these changes, however it is not legally necessary.

For more information, please contact Sean Melbourne or Chanel McDonald.