Legal Insights

Legislation Update: 10 days’ paid Family and Domestic Violence leave included in NES !

By Meaghan Bare, Catherine Dunlop, Grace Turner-Mobbs & Emily Fyffe

• 17 November 2022 • 4 min read

It is important for all employers to be aware of the introduction of the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022.

This Act amends the National Employment Standards to enhance the entitlement for employees to take family and domestic violence (FDV) leave, including:

increasing the amount of FDV leave available to employees from 5 to 10 days in each 12-month period
changing FDV leave from an unpaid entitlement to a paid entitlement
expanding the definition of FDV to capture violent, threatening or other abusive behaviour by a member of an employee’s household, or a current or former intimate partner (in addition to a member of the employee's immediate family, or a person who is related according to Aboriginal or Torres Strait Islander kinship rules).

These changes come into effect on:

1 February 2023 for employers with 15 or more employees and
1 August 2023 for employers with fewer than 15 employees.

Key things to note:

Who is entitled to paid FDV leave	All employees (including full-time, part-time and casual employees) will be entitled to 10 days’ paid FDV Leave. The entitlement to FDV leave is available if an employee is experiencing FDV and needs to do something to deal with the impact of the FDV which is impracticable to do so outside of work hours. For example, making arrangements for the employee’s own safety or that of a close relative (including relocation), attending court hearings, accessing police services, attending counselling and attending appointments with medical, financial or legal professionals.
How is FDV leave accessed?	The 10 days' paid leave is available upfront at the commencement of each year. However, the entitlement does not accumulate from year to year. Full-time and part-time employees can access the FDV leave at their full rate of pay for the hours they would have worked had they not taken the leave. Casual employees can access the FDV leave at their full rate of pay for the rostered hours the casual employee is unable to work due to taking the leave.
Can employers require the employee to provide evidence?	Employees must give employers notice of the FDV leave as soon as is practicable, and advise of the period or expected period of leave. Employers can require the employee to provide evidence to support the FDV leave request – which could include documents issued by the police, court or family violence support services.
What must employers do with this evidence?	Employers must take reasonable steps to ensure that any evidence received in support of an employee’s FDV leave request remains confidential – given the sensitivity of the information.

Employers should be fully aware of the changing obligations and duties that are introduced by this change, and stay up to date with any future changes. If you require assistance with managing paid domestic and family violence leave, please contact Meaghan Bare, Catherine Dunlop, Grace Turner-Mobbs or a member of the Employment, Safety & People Team.