Australia: Employees Entitled to Paid Family and Domestic Violence Leave

Employees (including part-time and casual) of non-small business employers (employers with 15 or more employees) can now access 10 days of paid family and domestic violence leave in a 12-month period. Employees (including part-time and casual) of small businesses (employers with less than 15 employees) can access the leave from 1 August 2023. The Federal Labor government made this their first change in workplace laws in 2023.

Background to Reform

The legislative amendments follow the decision of a Full Bench of the Fair Work Commission on the Family and Domestic Violence Leave Review 2021, 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 legislative changes to all national system employees (including part-time and casual employees) and potentially beyond.

Key Amendments

Entitlement to 10 days of Paid Family and Domestic Violence Leave

The Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (“Amending Act”) amends the Fair Work Act 2009 (“Fair Work Act”) to replace the current entitlement in the National Employment Standards (“NES”) (minimum statutory conditions applying to Australian employees) to 5 days of unpaid family and domestic violence leave in a 12-month period with an entitlement of 10 days paid family and domestic violence leave.

Previously, under the NES, all employees (including part-time and casual employees) were entitled to 5 days of unpaid family and domestic violence leave during a 12-month period.

The paid family and domestic violence leave:

• will be available in full at the start of each 12-month period of the employee’s employment;
• will not accumulate from year to year;
• will be available in full to full-time, part-time and casual employees;
• will be available for employees of larger businesses (15 or more employees) from 1 February 2023;
• will be available for employees of small businesses from 1 August 2023.

An employee 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; and
• it is impractical to deal with the family and domestic violence outside their ordinary hours of work.

Coverage

The Amending Act will extend the 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) comes into force for Australia, which is likely to be on or before 1 February 2025.

Definition of “Family and Domestic Violence”

Section 106B(2) of the Fair Work Act currently defines family and domestic violence as: “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”.

The Amending Act amends the Fair Work 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”.

Payslips

The Fair Work Legislation Amendment Regulations 2022 (“Regulations”) amends the Fair Work Regulations 2009 to prohibit employers from including information concerning family and domestic violence leave on employee’s payslips.

Specifically, the Regulations state that the following must not be included on employees’ payslips:

• a statement that an amount paid to an employee is a payment in respect of the employee’s entitlement to paid family and domestic violence leave;
• a statement that a period of leave taken by an employee is a payment in respect of the employee’s entitlement to paid family and domestic violence leave; and
• the balance of an employee’s entitlement to paid family and domestic violence leave.

From 4 February 2023, an amount paid to an employee for taking paid family and domestic violence leave has to be recorded on a pay slip as:

• ordinary hours of work; or
• another kind of payment for performing work, such as an allowance, bonus or overtime payment.

However, if an employee requests it, their employer can record time taken as paid family and domestic violence leave as another type of leave on their pay slip (for example, special leave).

Conclusion

As a result of these amendments, employers covered by the Fair Work Act are now required to provide 10 days paid family and domestic violence leave in a 12-month period to all employees (starting with larger employers immediately but eventually covering every employee).

Key Action Points for Human Resources and In-House Counsel

For employers, these amendments will mean they will need to update their contracts of employment and/or workplace policies and ensure that they provide all new employees with the updated Fair Work and Casual Employment Information Statements to reflect the new 10 days paid family and domestic leave entitlement. Employers will also need to ensure there is no reference to family and domestic violence on pay slips, which may require employers to amend their own payroll practices or work with their external payroll system providers to ensure that this information does not become included on pay slips inadvertently.