Introducing paid family and domestic violence leave to the Fair Work Act

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On Thursday 28 July 2022, the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (Bill) was introduced to Parliament.

The Bill is one of the first items of legislative change introduced by the Government in the industrial relations sphere, reflecting one of several election promises made under the “Secure Australian Jobs Plan”.   

If passed, this Bill will provide full-time, part-time and casual employees, from 1 February 2023 onwards, with ten days of paid family and domestic violence leave (FDV Leave) over a 12-month period. This will replace the existing National Employment Standard (NES) entitlement to five days of unpaid family and domestic violence leave, which is only available to full-time and part-time employees. 

The key amendments to the Fair Work Act 2009 (Cth) (FW Act) introduced by the Bill include:

  1. employees employed as of 1 February 2023 (other than small business employees) will be immediately entitled to ten days of paid family and domestic violence leave, regardless of whether a person has used any of their existing entitlement to five days of unpaid family and domestic violence leave.  The FDV Leave entitlement resets on each anniversary of an employee’s commencement date and does not accrue progressively like annual or personal leave entitlements. As is the case for personal leave, FDV Leave is not a leave entitlement that is paid out on termination of employment;
  2. employees who commence their employment after 1 February 2023 (other than small business employees) will have immediate access to FDV Leave from the day they commence their employment;
  3. employees of small businesses will not gain the benefit of FDV Leave until 1 August 2023, giving small businesses more time to make necessary arrangements to facilitate the new FDV Leave entitlement (such as changes to payroll systems);
  4. the scope of ‘family and domestic violence’ will extend beyond the current definition of ‘violent, threatening or other abusive behaviour by a close relative of an employee’ to include such behaviour by ‘a member of an employee’s household, or a current or former intimate partner of an employee’;
  5. FDV Leave will be paid at the employee’s full rate of pay as if the employee had worked their normal hours (or had worked their rostered hours in the case of casual employees);
  6. the Bill provides a mechanism to resolve any uncertainty that arises between entitlements to paid family and domestic violence leave in enterprise agreements (entered into prior to 1 February 2023) and FDV Leave entitlements introduced under the NES.  If there is any uncertainty regarding the interaction of the two entitlements, to avoid any detrimental effect to an employee who is covered by an enterprise agreement, a party to the enterprise agreement can apply to have the Fair Work Commission (FWC) vary an enterprise agreement for consistency with the NES entitlement. This may arise where the FDV Leave entitlement is more beneficial than the family and domestic violence leave entitlement under the enterprise agreement; and
  7. the Bill extends the provision of FDV Leave, a NES entitlement, to non-national system employees, such as some State public sector and local government employees. This replicates a similar approach taken to the extension of the entitlement to unpaid parental leave under the FW Act.

Notice and evidence to support FDV Leave requests

Employees seeking to take FDV Leave will be required to provide their employer with evidence to support their request. Evidence includes documents issued by the police, documents issued by a court, family violence support service documents or a statutory declaration.

Given the sensitive nature of the evidence, employers will be required to take reasonably practicable steps to keep any evidence confidential that they receive as part of an application for FDV Leave.  It will be important to adopt adequate practices and protocols around handling this information to protect its confidentiality. We note that employers are not prevented from disclosing the evidence if it is required by law or is necessary to protect the life, health or safety of the employee or another person.

Record-keeping practices

Assuming the Bill is passed, employers will also need to consider the necessary adjustments to their record-keeping practices.  Employers will be required to make and retain records for each employee of any FDV Leave taken and the balance (if any) of the employee’s entitlement to FDV Leave for 7 years. 

Employers will also need to consider changes to payslips, to reflect payments made to employees accessing FDV Leave (although noting that it is not a legal requirement that leave balances be included on payslips).

Enterprise agreements and modern awards

Employers should also be aware of these amendments if currently party to, or bargaining in relation to, an enterprise agreement. The family and domestic violence leave entitlements in an enterprise agreement will need to meet the FDV Leave entitlements as a minimum NES entitlement.  If not, the FWC can vary the enterprise agreement to ensure consistency between the two.  

The FWC is currently conducting a review of the family and domestic violence leave entitlements in modern awards (which presently provide for unpaid leave), however the review is on hold in light of the introduction of the Bill.

Work health and safety obligations

Employers should be reminded that their work health and safety obligation to provide a safe workplace includes the home environment in the event that employees are working from home. Employers will need to be mindful of their WHS duties in the context of employees who access FDV leave. 

What next?

  • Ensure record-keeping systems are adapted and updated to manage FDV Leave entitlements for each employee.
  • Familiarise yourself with any obligations that your business will have under any applicable industrial instruments and workplace policies that apply to your business to ensure you are in a strong position to meet any new obligations under the Bill.
  • Educate managers and human resource teams to handle FDV Leave requests and evidence with discretion to fulfil any confidentiality obligations.

Please reach out to us if you would like to discuss anything we have addressed in this article.

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