Paid Family and Domestic Violence Leave

On 28 July 2022 the Federal Government introduced the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (the Bill).

If the Bill passes through Parliament as predicted, all employees will be entitled to 10 days of paid family and domestic violence leave. This leave will be paid for by employers and will be available to full-time, part-time and casual workers. Unlike other leave entitlements, the 10-day entitlement does not accrue or accumulate year to year and will be available immediately upon first starting in a position.

In 2019 an entitlement of 5 unpaid leave days for family and domestic violence was introduced to the National Employment Standards (NES), allowing employees to take unpaid time off if a close relative was seeking to coerce or control the employee or cause them harm or fear by way of violent, threatening or other abusive behaviour. The new paid entitlement seeks to replace the existing entitlements.

These changes will take effect from 1 February 2023 for large businesses (businesses with 15 or more employees) and from 1 August 2023 for small businesses. As this payment is funded by employers, small businesses will likely require more time to budget for this entitlement. Employees will be able to take the paid family and domestic violence leave if they:

• experience family and domestic violence; and

• need to do something to deal with the impact of that violence; and

• it is impractical to do that thing outside their ordinary hours of work.

There has also been a change to the examples of what constitutes an action by an employee experiencing family and domestic violence under this leave entitlement. It now includes arranging for the safety of the employee or a close relative (including relocation), attending court hearings, accessing police services, attending counselling and attending appointments with medical, financial or legal professionals.

As with any other leave entitlement, there will be a requirement for evidence to be provided to the employer prior to being paid. This evidence would need to satisfy a reasonable person that the employee needs to take Family and Domestic Violence Leave. As this can be complex, the MTA’s Workplace Relations team are available to discuss each situation and confirm the required evidence for particular scenarios.

As this leave is available for casual workers, it is important to mention that they will only be able to be paid for the shifts they were actually rostered to work. For example, if a casual worker was rostered on for 3 days in a week and they were unable to make those shifts due to a domestic or family violence situation, they would only be able to get those 3 days paid from the 10-day balance. They are able to take further time off but will only be paid for the days/times they were actually rostered to work.

Payment for Family and Domestic Violence Leave will be at the employee’s full rate of pay, worked out as if the employee had not taken the period of leave, not the base rate of pay which is normally applicable to leave entitlements. This will apply to casuals as well, but only for the hours they were rostered to work.

Business are advised to start drafting or amending currently existing policies around the paid Family and Domestic Violence Leave in preparation for 2023. Employment contracts may also need to be amended to reflect additional leave. The MTA will be producing a template policy in this regard which will be available for members.

For more assistance in this area, or if you have any questions relating to this likely new change in legislation, please contact the MTA Workplace Relations Team on (08) 8291 2000 or email wr@mtasant.com.au.