Employers to foot bill for 10 days PAID Family & Domestic Violence Leave from 2023

In its first sitting week of Parliament, the Albanese Government made good on an election promise, introducing the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 to the House of Representatives. If passed, the Bill will amend the National Employment Standards (NES) to provide for 10 days of PAID family and domestic violence leave for all national-system employees as a guaranteed minimum standard.

The proposed legislation would extend the entitlement to full-time, part-time and casual employees from 1 February 2023, though small business employers (less than 15 employees, on a head count, including casuals employed on a regular and systematic basis) will not be bound by the new entitlement until 1 August 2023.

In his second reading speech delivered on 28 July 2022, Workplace Relations Minister, Tony Burke, explained that, once in force, the 10 days leave would be available “upfront, allowing immediate access to the full entitlement from the commencement of employment”. Minister Burke also made clear that, unlike other forms of paid leave already accessible to permanent workers which are paid at the base rate of pay, the 10 days family and domestic violence leave will be available to casual employees and be payable “at the rate people would have received had they not taken leave, not just their base rate of pay”. In the case of casual employees, Minister Burke explained that “casual employees will be paid for rostered shifts, including where a shift has been offered and accepted, providing employers with certainty about the rate of payment for the casual employee.”

When confirming the entitlement will be available to 2.6 million casual workers across Australia, Minister Burke noted, “family and domestic violence doesn’t pick and choose based on whether you’re a permanent or a casual worker”. He added that women experiencing, or who have experienced, family and domestic violence “have a more disruptive work history and are more likely to be employed in casual work than women with no experience of violence”.

Acknowledging that “many can’t leave violent situations without risking joblessness, financial stress homelessness and poverty, leaving workers having to choose between their safety and their livelihood”, Minister Burke identified that access to 10 days paid leave will make leaving home, reporting family and domestic violence and going to court, “just that bit easier”.

The Bill also proposes to refine the definition of family and domestic violence to ensure that “violent or abusive behaviour in intimate relationships, whether or not the partners cohabit will also be captured, and employees can take paid leave to seek necessary assistance”. In dismissing concerns that the refinements might “broaden the definition too much”, Minister Burke referenced evidence adduced as part of the Fair Work Commission’s 2021 review into the existing leave entitlements available to individuals experiencing family and domestic violence and commented that, “This is just not an entitlement that employees rort.”

In introducing the Bill, Minister Burke expressed that the Labor Government settled on a significant lead time before the entitlement would become operative, to allow both employers and employees to properly understand the new leave provision. “I want there to be a chance for business to work through essential principles, such as how to describe the leave entitlement on a payslip, without using terms that could make an awful situation even worse”, he noted. According to Minister Burke, the Government has undertaken to work with businesses of all sizes, “so they’ll be equipped to have a sensitive conversation with their employee, understand their obligations and have appropriate mechanisms and payroll practices in place to sensitively manage it”.

The Bill is expected to be passed without amendment, with Shadow Workplace Relations Minister, Michaelia Cash, previously confirming publicly that the Opposition supports the introduction of the entitlement to 10 days of paid leave per year, though would have favoured the approach previously proposed by the Fair Work Commission, which would have seen the provision enshrined within the modern awards, rather than the NES.

When operative, the 10 days of paid family and domestic violence leave will replace the existing entitlement to five days of unpaid leave, which was inserted into the NES by the Turnbull Government in 2018.

UPDATE:

The Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 passed both Houses of Parliament on 27 October 2022 and received Royal Assent on 9 November 2022, signing into law a minimum entitlement of 10 days PAID Family and Domestic Violence Leave for all national-system employees, including casuals, from February 2023.