7 November, 2022
The government has finalised its Bill to introduce paid family and domestic violence leave into the National Employment Standards. These new provisions may also affect State-system employers in the future. Here’s what these new provisions mean for you.
On 27 October 2022, Parliament passed the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 which, upon receiving royal assent, will amend the Fair Work Act 2009 (Cth) (“FW Act”) to include paid family and domestic violence leave (“FDVL”) in the National Employment Standards. These new provisions will replace the current FDVL provisions.
Employees will be entitled to ten days of paid FDVL (up from five days of unpaid leave) each year. FDVL will ot accumulate from year to year. When an employee takes a period of FDVL, they will be entitled to their full rate of pay (unlike, for example, when the employee takes a period of personal/carer’s leave, in which case they are entitled only to their ‘base rate of pay’). This means that payment for the period of leave is the full amount that the employee would have been entitled to had they not taken the leave (inclusive of penalty rates, loadings, etc). The intention behind this is that ‘getting out [of a domestic violence situation] shouldn’t mean losing pay’.[1]
A concept new to the FW Act is the introduction of paid leave for a casual employee. Under the new provisions, a casual employee will also be entitled to paid FDVL where they take that leave on a day that they were rostered to work. This is also at the casual employee’s full rate of pay (for the hours that they would have worked under the roster had they not taken the period of leave).
The provisions take effect at different times, depending on the employer.
Additionally, the new provisions extend to non-National System Employers if and when the ILO Convention (No. 190) concerning Harassment, adopted at Geneva on 21 June 2019, comes into force for Australia—provided that Convention comes into force for Australia on or before 1 February 2025
Business will need to update their systems to account for the new entitlement to paid FDVL, ready to be implemented on 1 February 2023 (or 1 August 2023 for a small business). Where your business has an enterprise agreement that provides an entitlement to paid FDVL, you (or one of your employees or their union) may apply to the Fair Work Commission to seek a declaration about whether the effect of the enterprise agreement terms are beneficial or detrimental when compared to the new National Employment System terms (and, if necessary, varying the effect of the terms of the agreement). EMA Consulting can assist with this if required.
This EMA Note is not comprehensive advice about your situation and does not cover all your obligations. If you require further information or advice, please contact your Consultant.
[1]Second Reading Speech for the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (Cth), 28 July 2022 (the Hon Tony Burke MP).
EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.
