Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 introduced to Parliament

The Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 was introduced to Parliament on 28 July 2022. The Bill proposes to amend the Fair Work Act 2009 (Cth) to include 10 days paid family and domestic violence leave (FDVL) in each 12-month period in the National Employment Standards (NES). The proposed entitlement will replace the current NES entitlement of 5 days unpaid FDVL in each 12-month period.

The Bill is one of the Australian Labor Party’s (ALP) key workplace reforms it committed to making following the federal election in May 2022. The ALP promised to legislate the right to 10 days paid FDVL as part of the NES.

What is the FDVL used for?

The current NES entitlement allows an employee who is experiencing family and domestic violence to take FDVL if they need to do something to deal with the impact of the family and domestic violence, and it is impractical to do it outside of work hours. The current legislative note provides examples of actions that may need to be taken, such as arranging for the safety of the employee or a close relative, attending court hearings, accessing police services, attending counselling and attending appointments with medical, financial or legal professionals.

As well as amending the entitlement from 5 unpaid days to 10 paid days, the Bill proposes to extend the definition of family and domestic violence, which is currently violent, threatening or abusive behaviour by a close relative (which includes a member of the employee's immediate family or a person related according to Aboriginal or Torres Strait Islander kinship roles), to also include such conduct by a current or former intimate partner of an employee, or a member of an employee’s household.

Who can access the paid FDVL and how do employees accrue it?

The 10 days paid FDVL will:

• be available to full-time, part-time and casual employees;
• be available upfront at the commencement of each year, meaning the leave is not accrued by employees annually; and
• be payable at the rate the employee would have earned had they worked instead of taking the leave.

For casual employees, the rate of pay will be worked out as if the employee had worked the hours in the period for which the casual employee was rostered.

The Bill also proposes to extend the leave to state referral employees and non-national system employees. This would be supported by the external affairs power under Australia’s Constitution once the International Labour Organisation Convention (No. 190) concerning Violence and Harassment (C190) has been ratified and comes into force in Australia. The ALP has committed to ratify C190 as part of its promise to fully implement all 55 recommendations of the Respect@Work Report.