New NES entitlement: Paid Family and Domestic Violence Leave

The National Employment Standards (NES) contained in the Fair Work Act 2009 (Cth) (FW Act) have been amended to give all employees, including casuals, an entitlement to up to 10 days of paid family and domestic violence leave (FDV leave) each year.

The definition of ‘family and domestic violence’ has also been updated to include the conduct of a current or former intimate partner of an employee or a member of their household.

The new provisions are operative from 1 February 2023. The operative date for small business employers (with 14 or fewer employees) will be 1 August 2023.

Who is entitled to paid FDV leave?

All employees, including casuals will be eligible to access paid FDV leave.

How much paid FDV leave is an employee entitled to?

An employee will be entitled to up to 10 days of paid FDV leave each year. The entitlement does not accumulate from year to year, so if an employee does not use it, it will not carry across to the following year.

The entitlement is not calculated based on an employee’s ordinary hours of work, unlike other NES entitlements such as personal leave and annual leave.

For what purposes can paid FDV leave be taken?

An employee may take paid FDV leave if the following eligibility requirements are met:

• the employee is experiencing family and domestic violence; and
• the employee needs to do something to deal with the impact of the family and domestic violence; and
• it is impractical for the employee to do that thing outside of the employee’s ‘work hours.’

The new entitlements permit employees to take paid FDV when they need to do something to deal with family and domestic violence during their ‘work hours’ including overtime hours.

In effect, the amendment means that an employee may be able to access paid FDV during overtime hours and be paid the relevant overtime rate.

A note in the NES will identify the following as examples of activities for which an employee may be able to access paid FDV leave:

• attending counselling or appointments with medical, financial or legal professionals;
• arranging for the safety of the employee or a close relative (including relocation); and
• attending court hearings or accessing police services.

What is the new definition of ‘family and domestic violence’?

The definition has been extended to include the conduct of a ‘current or former intimate partner of an employee’ and ‘a member of an employee’s household’.

The new definition 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:

• seeks to coerce or control the employee; and
• causes the employee harm or to be fearful.

The definition of a ‘close relative’ in the FW Act has not changed:

A close relative of an employee is defined as a person who:

• is a member of the employee’s immediate family; or
• is related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

What rate of pay do employees receive during a period of paid FDV leave?

The calculation of paid FDV leave differs slightly between permanent and casual employees.

For permanent employees – the payment must be at the employee’s ‘full rate of pay’ worked out as if the employee had not taken the period of leave.

For casual employees – payment must be at the employee’s ‘full rate of pay’ worked out as if the employee had worked the hours in the period that they were rostered.

This will include circumstances where a casual employee has accepted an offer from the employer to work certain hours, for example:

• the employee gives the casual employee in advance a list of shifts to be worked;
• an offer and acceptance of work that has been agreed verbally. There is no need for it to be confirmed in writing.

What amounts must be included in the employee’s ‘full rate of pay’?

An employee’s ‘full rate of pay’ is defined in the FW Act as the rate that is payable to an employee, including the following:

• incentive-based payments and bonuses
• loadings
• monetary allowances
• overtime or penalty rates
• any other separately identifiable amounts.

The intention is that employees taking paid FDV leave will receive the same remuneration they would have received had they not taken the leave, as far as possible.

What notice does an employee need to give their employer when they are accessing paid FDV leave?

An employee must:

• give the employer notice of the taking of leave, as soon as practicable (which may be a time after the leave has started); and
• advise the employer of the period, or expected period, of the leave.

What evidence does an employee need to give to the employer?

An employee must, if required by the employer, give evidence that would satisfy a reasonable person that they have met the eligibility requirements (as outlined above) for the taking of paid FDV leave.

What are the confidentiality requirements?

Employers must take steps to ensure that information concerning notice or evidence given by an employee for the purposes of taking paid FDV leave is treated confidentially, as far as reasonably practicable.

An employer must not, unless the employee consents, use the information for a purpose other than to confirm that the employee meets the eligibility requirements for the leave.

An employer is not prevented from dealing with information provided by an employee if doing so is required by an Australian law or is necessary to protect the life, health or safety of the employee or another person.

New pay slip requirements for paid FDV leave

The Government plans to implement regulations prohibiting employers from including information on pay slips that identify the employee has accessed paid FDV leave. These regulations have not yet been implemented.

When do the new provisions commence?

The new paid FDV leave entitlement will not commence until 1 February 2023 to allow employers to make necessary payroll adjustments and other changes required to prepare for its implementation.

Small business employers (employing 14 and less employees) have an extra 6 months to prepare for the new entitlement. The entitlement will not apply to a ‘small business employee’ until 1 August 2023.

The table below explains when the entitlement will apply for existing employees and those who start employment after the amendments come into operation.

More information

For more information on the new NES entitlement, go to New paid family and domestic violence leave - Fair Work Ombudsman