Under new legislation introduced to Parliament today, all employees in Australia would be entitled to 10 days of paid family and domestic violence leave (‘FDV Leave’) each year. The Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (‘Bill’) is one of the first pieces of legislation introduced by the new Federal Government after it won the May election, and the new Government’s first legislative reform on industrial relations.

If passed, the amendments will provide FDV Leave to full-time, part-time and casual employees of non-small business employers from 1 February 2023, or 1 August 2023 for employees of small business employers. Workplace Relations Minister Tony Burke said the Government wanted to provide a significant lead time before the changes would take effect to ensure employees and employers properly understand the new entitlements.

With the Fair Work Commission having provisionally approved the inclusion of the same entitlement in all modern awards in Australia just two months ago, the Bill is likely to pass through Parliament. It is unclear at this stage whether the Fair Work Commission will progress with including clauses in modern awards which supplement these proposed additions to the NES. It is likely that the Commission will take a similar approach to 2018, when it expressed a similar view about inserting unpaid family and domestic violence leave entitlements into modern awards, but it was not ultimately necessary to follow this through, as the entitlement was legislated into the NES shortly after the Commission’s decision.

The new paid entitlement seeks to replace the existing five day entitlement of unpaid family and domestic violence leave enshrined in the National Employment Standards in 2019.

In an important development, the definition of ‘family and domestic violence’ would also be extended to include conduct of a current or former intimate partner of an employee, or a member of an employee’s household.

The Bill intends to provide employees with the same remuneration they would have received had they not taken the leave, to the extent possible. Full-time and part-time employees would be entitled to receive their full rate of pay (including incentive-based payments and bonuses, loadings, overtime rates and penalty rates) for the hours in the period for which they were rostered.

Casual employees would receive their full rate of pay (including casual loading) for any shifts they have accepted at the time they commence the period of FDV Leave. For example, if a casual employee had accepted 3 shifts on a Tuesday, Wednesday and Thursday and experienced family or domestic violence on the Monday, and was unable to work for the remainder of the week (and otherwise qualified for FDV Leave), they will be entitled to be absent from work for up to 10 days, but would only receive paid FDV Leave for the 3 shifts which were accepted at that time.

The evidentiary provisions in the previous unpaid family and domestic violence leave scheme will be maintained which allow employers to require affected employees to provide evidence that the leave is taken for family and domestic violence reasons. Employers will be obligated to ensure information given by the employee is treated confidentially so far as it is reasonably practicable to do so.

Aitken Legal will monitor the progress of the Bill through the Parliament and keep employers up to date on its progress.