On 28 July 2022, we reported on the details of the Federal Government’s Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (the Bill) which proposed to amend the Fair Work Act 2009 (Cth) (FW Act) by inserting a non-accumulating entitlement to 10 days paid family and domestic violence leave each year, into the National Employment Standards (NES), for all employees (including casual and part-time employees). The Bill was passed by the House of Representatives on 27 October 2022 as the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (the Act). The Bill was passed without significant changes.
Partner Andrew Tobin and Solicitor John Hickey discuss the new paid entitlement, eligibility criteria, as well as the Federal Government's ‘National Plan to End Violence Against Women and Children 2022-2032’.
To provide time for payroll and other necessary adjustments, the new paid entitlement to family and domestic violence will apply from 1 February 2023 for all non-small business employers (employers with 15 or more employees). Small business employers (employers with fewer than 15 employees) will have until 1 August 2023 to implement this new paid NES leave entitlement to their employees.
When will employees be able to take paid family and domestic violence leave?
Under the Act, employees (including casual and part-time employees) will be able to take paid family and domestic violence leave if they:
- experience family and domestic violence; and
- need to do something to deal with the impact of that violence; and
- it is impractical to deal with that violence outside their ordinary hours of work.
The FW Act currently defines “family and domestic violence” to mean “violent, threatening or other abusive behaviour by a close relative of an employee that seeks to coerce or control the employee or causes the employee harm or to be fearful”.
The Act extends the definition of “family and domestic violence” to include conduct of “a member of an employee’s household, or a current or former intimate partner of an employee”.
Examples of where family and domestic violence leave may be taken by employees include for the purposes of:
- making arrangements for their safety or the safety of a close relative, such as a dependent child (including relocation);
- attending urgent court hearings; and
- accessing police services.
To access this leave entitlement, employees are required to give their employer notice as soon as practicable of the need to take leave, and their expected length of leave.
An employer may ask an employee to provide evidence that would satisfy a reasonable person of their need to take family and domestic violence leave. Examples of reasonable evidence include documents issued by police or the court, family violence support service documents or statutory declarations.
Failure by an employee to comply with their employer’s request to provide reasonable evidence will result in the employee’s ineligibility in taking this paid leave entitlement.
National Plan 2022-2032
On 17 October 2022, the Federal Government released the ‘National Plan to End Violence Against Women and Children 2022-2032’. This National Plan replaced the existing 2010-2022 National Plan which expired in mid-2022.
The National Plan sets out the framework for action by the Commonwealth, State and territory governments to reduce violence against women and their children.
The key priorities of the National Plan are to:
- reduce violence against women and their children;
- increase support for women and their children;
- improve how governments work together; and
- create innovative and targeted ways to bring about change.
To support the delivery and oversight of the National Plan, the Federal Government has also announced the appointment of Ms Micaela Cronin as Australia’s first Domestic, Family and Sexual Violence Commissioner. In this role, Ms Cronin will be tasked with tracking and reporting on the progress of the National Plan to end violence against women and children and will be an advocate for victim-survivors of violence.
A copy of the National Plan can be accessed here.
Key takeaways
Employers should be aware of the legislative changes passed under the Act. On coming into operation on 1 February 2023, employers will need to update their contracts of employment and/or workplace policies to reflect the new 10 days paid family and domestic violence leave entitlement for all employees.
Employers will also need to ensure that they provide all new employees with the updated Fair Work and Casual Employment Information Statements to reflect the new paid leave entitlement.
If you require any further information, or for assistance with reviewing existing contracts of employment and workplace policies to ensure that they are legally compliant, please contact our Workplace and Employment team.