Published November 2022

On 27^th October 2022 the Labor Government passed landmark legislation allowing working Australians to gain access to 10 days of paid family and domestic violence leave per year, from February 2023.

This will replace the current NES entitlement of 5 days unpaid family and domestic violence leave (FDVL).

This is a huge step forward in relation to a societal and community issue that should not be taken lightly, and there are important changes Australian employers should be aware of, including:

• The definition of FDVL will be extended to include conduct of a current or former intimate partner of an employee, or a member of an employee’s household;
• It will be accessible by all employees, including casuals who have been ‘rostered’ to work (ie. have accepted an offer to work);
• It will be available ‘upfront’ meaning the leave does not accrue throughout the year and is available in full (10 days of pay) at the commencement of every year (within a 12 month period); and
• It will be payable at the rate the employee would have earned had they worked instead of taking the leave (instead of being payable only at base rates).

WHAT THIS MEANS FOR YOUR BUSINESS

To provide time for payroll and other necessary adjustments, the new paid entitlement will commence from 1 February 2023.

To recognise the unique needs of small businesses with limited human resources, an additional transition period of 6 months will be provided for employers who meet the definition of small business employer in the Fair Work Act 2009 (that is, fewer than 15 employees), meaning it will come into effect for small businesses from 1 August 2023.

This will be a significant change for employers to navigate, particularly given the upfront, blanket application of this new paid leave type. We encourage all employers to begin planning and budgeting for this now.

HOW THE LEAVE RENEWS

The leave renews every year on each employee’s work anniversary. It doesn’t accumulate from year to year if it isn’t used.

Employees who start on or after the date that the paid leave entitlement becomes available at their new workplace can access the full 10 days for their first day and the leave will renew on their work anniversary.

Employees who are already employed when the paid leave entitlement starts in their workplace can access the full 10 days on the relevant start date. The leave will then renew on their work anniversary.

PAYMENT FOR LEAVE

FT/PT: can take paid FDV Leave at their full pay rate for the hours they would have worked if they weren’t on leave.

Casuals: will be paid at their full pay rate for the hours they were rostered to work in the period they took leave.

WORKPLACE POLICIES

Some businesses may provide FDVL entitlements and procedures in their employment contracts or workplace policies. These should be reviewed prior to the effective date applicable to your business.

All businesses should be aware that if an employment contract or workplace policy provides less than the minimum entitlement in the NES, the NES entitlement still applies.

EVIDENCE & PRIVACY

When requesting this new paid FDV leave, it remains unclear what evidence will be adequate to establish that an employee is experiencing family and domestic violence. Further, the question of how this leave will interact with the privacy of such employees remains unanswered.

MORE INFORMATION

The team at Edwards HR will keep our clients up to date with further information on the implementation of this new leave entitlement as they roll out. Be sure to subscribe to updates on our website and follow us on LinkedIn and Facebook so you can stay up to speed.

The Fair Work Ombudsman website will also have more information and updates as they become available.

SUPPORT SERVICES

Confidential information, counselling and support for people impacted by domestic and family violence is available at the 1800 RESPECT website.

Also, the 2023-24 budget recently announced by the Labor Government included a range of commitments aimed at addressing violence against women and children, such as additional frontline workers, education around consent and relationships in schools, housing for women fleeing violence and a new Domestic, Family and Sexual Violence Commission. You can read about them here.