Federal Government introduces paid FDV leave legislation

As anticipated, Workplace Relations Minister Tony Burke has introduced the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022, to insert 10 days paid family and domestic violence leave (FDV leave) into the National Employment Standards (NES).

This proposal was a key election promise of the Labor government, and follows the recommendation of the Full Bench of the Fair Work Commission to amend the modern awards to include paid FDV leave (read our previous alert here). The NES in its current form only provides 5 days of unpaid FDV leave.

The Minister stated that the key principle guiding the proposed legislation is that ‘getting out shouldn’t mean losing pay’. The paid FDV leave is intended to apply to all employees, including casual employees, at the rate the employee would have received had they not taken leave, rather than the base rate of pay. In respect of casuals, it would require payment of at the casual’s full rate of pay, as if he or she had worked the hours he or she would have been rostered to work.

The current definition of family and domestic violence is violent, threatening or other abusive behaviour by a ‘close relative’ of an employee, that seeks to coerce or control the employee and causes the employee harm or to be fearful.  The definition of a ‘close relative’ has been extended with the proposed Bill to include a member of the employee’s household, or a current or former intimate partner of an employee.  Examples of when the leave may be accessed include ‘arranging for the safety of the employee or a close relative (including relocation), attending court hearings, accessing police services’. Other examples expressly given in the Bill include ‘attending counselling and attending appointments with medical, financial or legal professionals.’

The Bill provides a mechanism for FDV leave clauses in enterprise agreements that some employers have already agreed, to be reviewed by the Fair Work Commission, upon application by an employer, employee or employee organisation covered by the agreement. If the Commission considers the terms of the enterprise agreement to be detrimental to employees, the enterprise agreement may be varied to be consistent with the NES.

Employers must take steps to familiarise themselves with the legislation if passed, and to ensure employee records and payroll systems accommodate the expected change.  This will mean a review of payslips, among other things.  As it will be an NES entitlement if passed, contravention of the law will attract penalties, as it is a civil remedy provision.  Employers covered by Enterprise Agreements should start reviewing their agreement (or proposed agreement) to make the transition process as smooth as possible.

The Bill remains before the House of Representatives. If passed, the entitlement will commence from 1 February 2023 for non-small business employers, and from 1 August 2023 for small business employers. It will also extend to non-national system employees and non-national system employers.

EMA Legal can assist employers with all queries related to FDV leave entitlements.