Just two months after emerging victorious at the May 2022 federal election, the Albanese Labor Government (Federal Government) wasted no time in legislating for key industrial relations reforms around family and domestic violence leave. On 28 July 2022, the Federal Government introduced to Parliament the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (the Bill). The final text of the Bill, being the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (amending Act), was agreed to by both the House of Representatives and the Senate on 27 October 2022 and now awaits Royal Assent, with the substantive provisions not coming into effect until February 2023. The amending Act changes the Fair Work Act 2009 (FW Act) by replacing the current entitlement of five days of unpaid leave with 10 days of paid family and domestic violence leave for eligible employees each year in the National Employment Standards (NES).
The legislative changes follow the decision of a Full Bench of the Fair Work Commission on the Family and domestic violence leave review 2021,1 where the Full Bench formed the view that an entitlement to 10 days of paid family and domestic violence leave should be provided to full-time employees covered by modern awards. This has now been extended by the latest changes to all national system employees and potentially beyond.
What amendments are proposed?
Entitlement to 10 days of paid leave
The amending Act amends s 106(A)(1) of the FW Act to: "An employee is entitled to 10 days of paid family and domestic violence leave in a 12-month period".
Employees covered
The changes expand the categories of employees eligible to claim the paid family and domestic violence leave to include casuals and (proposed in future) non-national system employees.
Expanding definition of "family and domestic violence"
The amending Act amends s 106B(2) of the FW Act to expand the definition of family and domestic violence to: "Family and domestic violence is 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 (a) seeks to coerce or control the employee; and (b) causes the employee harm or to be fearful".
Extension to non-national system employees
The amending Act extends entitlement to paid family and domestic violence leave to non-national system employees once the International Labour Organization Convention on Violence and Harassment (No. 190) has been ratified and comes into force in Australia, which is likely to be on or before 1 February 2025.
When do I have to comply?
The 10-day paid family and domestic violence leave entitlement under the NES will commence on 1 February 2023 for employers with a staff head count of more than 15 people as at 1 February 2023; and 1 August 2023 for employers with a staff head count of 15 or fewer people as at 1 February 2023.
Who can apply?
Full-time, part-time, casual and (proposed in future) non-national system employees may apply for paid family and domestic violence leave if:
- they experience family and domestic violence
- they need to do something to deal with the impact of the family and domestic violence
- it is impractical to deal with the family and domestic violence outside their ordinary hours of work
Can I ask the employee to provide evidence?
An employer may ask an employee to provide evidence that would satisfy a reasonable person of the employee's need to take paid family and domestic violence leave. Evidence may include, but is not limited to, documents issued by police or the court, family violence support service documents or statutory declarations. Failure to comply with an employer’s request to provide evidence may result in the employee being deemed ineligible for paid family and domestic violence leave.
Comparison: New vs existing NES entitlements
The changes replace and expand the current minimum statutory entitlements under the NES in a number of ways.
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New NES entitlements |
Existing NES entitlements |
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What is the benefit? |
Full-time, part-time and casual employees are entitled to 10 days of paid family and domestic violence leave every 12 months. |
An employee is entitled to five days of unpaid family and domestic violence leave in a 12-month period (s 106A(1) of the FW Act). |
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Who gets the benefit? |
Full-time, part-time, casuals and (proposed in future) non-national system employees. |
Full-time and part-time employees. |
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What is family and domestic violence? |
The definition of family and domestic violence is expanded to include violence perpetrated not only by an employee's close relative, but also by "a member of an employee's household, or a current or former intimate partner of an employee". |
"Family and domestic violence" is violent, threatening or other abusive behaviour by a close relative of an employee that (a) seeks to coerce or control the employee; and (b) causes the employee harm or to be fearful (s 106B(2) of the FW Act). |
What if I fail to comply with the family and domestic violence provisions?
Non-compliance with the proposed paid family and domestic violence leave provisions will give rise to breaches of the civil remedy provisions under Part 4-1 of the FW Act, exposing employers and individuals such as managers, to significant monetary penalties and other court orders.
What does this mean for my business or organisation?
Employers must ensure they comply with the new laws and provide the enhanced benefits to relevant employees by:
- educating and training managers on the content of the new laws and how to deal with applications for the leave
- reviewing and updating systems, policies and procedures to ensure compliance
- communicating the relevant changes to staff
- implementing record-keeping arrangements to track leave taken
The Workplace Relations & Safety team at Lander & Rogers can help you understand and comply with the changes. Please let your usual contact know if you would like more information.
Photo by Alex Ivashenko on Unsplash.
1 Family and domestic violence leave review 2021 [2022] FWCFB 2001
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