As you may have seen on the news over the past week or two, there is change ahead for Family and Domestic Violence Leave in Australia and we thought it would be useful to summarise what might be down the road for employers and employees.
On 28 July 2022, the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (Bill) was introduced in the House of Representatives and proposes to amend the National Employment Standards (NES) to include an entitlement to paid family and domestic violence (FDV).
What’s in the detail
We have taken a look at what has been put on the table as part of the Bill and below are some of the key changes.
Increase to 10 days’ paid FDV leave: The current NES entitlement for five days of unpaid FDV leave in a 12 month period will be swapped out for an entitlement to ten days of paid FDV leave in a 12 month period for full-time, part-time and casual employees. Employees will be able to access the full 10 days of paid leave from the very start as the entitlement is not pro-rated like other leave entitlements under the NES and it will reset on their following anniversary of employment. For new employees who join after the new FDV leave comes into force, they will be entitled to 10 days on commencement, with the leave resetting on each anniversary of employment.
Paid at the full rate of pay: Generally paid leave is paid at the base rate of pay, however under the Bill, permanent employees must be paid at their full rate of pay for the hours they would have worked. This includes incentive-based payments and bonuses, loadings, overtime or penalty rates, monetary allowances, and any other separately identifiable amounts. Casual employees are also entitled to take FDV leave at their full rate of pay for the hours they would have worked.
Expanded definition of FDV: The definition of FDV will be expanded to include conduct of a current or former intimate partner of an employee, or a member of an employee’s household.
Circumstances when FDV leave can be taken: The Bill expands on the circumstances for when FDV can be taken and includes when it is impractical for the employee to do something to deal with family and domestic violence during their ‘work hours’. ‘Dealing with’ family and domestic violence can include attending appointments (eg medical, financial or legal) and attending counselling.These are non-exhaustive examples only and are not intended to limit when an employee can access the leave.
Switching leave: If an employee is taking a period of paid personal/carer’s leave, and they subsequently need to take paid FDV leave, they are entitled to switch to paid FDV leave.
Enterprise agreements: As a general rule, enterprise agreements cannot provide employees with worse off conditions than the NES. Agreements with existing FDV leave provisions that fall short of the new provisions will no longer apply and the Fair Work Commission will have the power to vary agreements where appropriate (and on application).
If passed, the new FDV leave will come into operation from:
- 1 February 2023 non-small business employers and their employees, or
- 1 August 2023 for small business employers and their employees (i.e. <15 permanent head count).
It will be important to keep an eye out for further updates as this continues to develop.
In the meantime, employers should start getting ready to adjust their existing FDV policies in anticipation for the above to come into operation next year as we see these changes as being more guaranteed than not.
If you or your business would like any assistance or if you have any questions about managing FDV in the workplace, reach out to our experienced team.