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NES Update: Family and Domestic Violence Leave
The Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2020 was passed by Federal Parliament on 27 October 2022 and amends the Fair Work Act 2009 (“FW Act”) to provide all employees with an entitlement to 10 days of family and domestic violence leave (“FDV leave”).
This new entitlement is part of the National Employment Standards (“NES”) and replaces the existing NES entitlement to five days of unpaid FDV leave.
From 1 February 2023, all employees will be entitled to 10 days of paid FDV leave within a 12-month period. Small businesses will have an additional six months to comply with the changes to allow for payroll and other operational adjustments.
Paid FDV leave is available in full at the start of each 12-month period of an employee’s employment but does not accumulate from year-to-year. The leave may be taken as a single continuous period, separate periods of one or more days or any period (including a period of less than one day) agreed between the employer and employee.
Employees are entitled to be paid as follows:
- for full-time and part-time employees: at their full rate of pay, worked out as if the employee had not taken the leave; and
- for casual employees: at their full rate of pay, worked out as if the employee had worked the hours for which they had been rostered.
Paid FDV leave will be available to all part-time, full-time and casual employees. Historically, casual employees have not been entitled to paid leave. However, the decision to provide paid FDV leave to casual employees is in recognition that people experiencing domestic and family violence are more likely to be employed in casual work.
Employees needing to take FDV leave need to meet the following criteria:
- they are experiencing family and domestic violence;
- they need to do something to deal with the impact of family and domestic violence (for example, attending court hearings or accessing police services); and
- it is impracticable to do that thing outside work hours.
Employees are required to give notice and employers are entitled to ask for evidence in the same way they would ask for evidence for most other forms of leave under the NES (for example, personal/carer’s leave). For more information on notice and evidence requirements, see our previous article here.
Expanded definition of “family and domestic violence”
The FW Act previously allowed access to unpaid FDV leave if an employee experienced family or domestic violence from a “close relative” of the employee. A close relative was defined as a member of an employee’s immediate family, or someone related to the employee according to Aboriginal or Torres Strait Islander kindship rules.
The definition of FDV leave entitlement has been expanded to include employees who experience family or domestic violence by any member of the employee’s household, or a current or former intimate partner.
Employers need to prepare for the upcoming change by reviewing their industrial instruments including employment contracts and workplace policies to ensure references to FDV leave entitlements are up to date.
The legislation will be reviewed after 12 months to consider the impact on small business, sole traders and people experiencing family and domestic violence.