Family and domestic violence is a critical issue across Australia, with an estimated one in every six Australian female workers experiencing family and domestic violence (FDV). Due to the prevalence of FDV in our community, particularly among working women, the National Employment Standards (NES) were amended in 2018 to entitle all employees to 5 days of unpaid FDV Leave each year. More recently, in May 2022, the Fair Work Commission expressed a provisional view in favour of paid FDV Leave in modern awards, although the Commission’s review is currently on hold in light of these new announcements from the Federal Government.
This issue has only become more pressing since the start of the COVID-19 pandemic, with a study by the Australian Institute of Health and Welfare finding that approximately 1 in 10 Australian women have suffered FDV since February 2020. Due to the increasing need to provide support to victims of FDV, the Federal Government has introduced changes to the NES in the Fair Work Act entitling victims of FDV to 10 days of paid FDV Leave per annum.
What is FDV Leave?
FDV Leave is available to employees who have experienced violent, threatening, controlling, or abusive behaviour by a close relative. It allows them to take time off from work to do things necessary to alleviate their situation, such as seeking support, finding safe accommodation, or attending court hearings, without putting their employment at risk.
What Has Changed?
All employees, including full-time, part-time and casual employees, will be entitled to 10 days of paid FDV Leave every year. Employees will be entitled to the full 10 days from the day they commence employment, and the entitlement will refresh every year. FDV Leave will be payable on the “full rate of pay” they would have received had they not taken the leave (rather than the “base rate of pay”).
This will replace the existing entitlement to 5 days of unpaid FDV Leave. The new entitlement will operate in much the same way as the existing unpaid entitlement.
There will however be some improvements to the existing unpaid entitlement. Not only does this provide for paid leave and doubling the amount of leave an employee can take in a 12 month period, it also extends the definition of FDV to include conduct of “a member of an employee’s household, or a current or former intimate partner of an employee”. In addition, the new entitlement will be available to casual employees who do not normally have access to paid leave.
As the new entitlement is proposed to be legislated under the NES, it will apply to all national system employees, including employees under enterprise agreements which already have paid FDV Leave entitlements.
The new entitlement will take effect on 1 February 2023 for most employers, although small businesses will have until 1 August 2023 for the changes to take effect.
What Does it Mean for Employers?
Employers should ensure that they have updated their leave policies before 1 February 2023 to reflect the new changes. It is also critical that employers understand the critical role the workplace has to play in supporting employees experiencing FDV, including practical workplace supports and safety plans.
To help employers understand their new obligations as well as how to effectively support employees experiencing FDV, we will be delivering a workshop with Gallagher Workplace Risk for FDV Contact Officers at 12:30PM – 4:30PM (AEST) on Monday, 29 August 2022. To register for the FDV Contact Officer Course, please click here. If your workplace requires further assistance, don’t hesitate to contact the team at HR Legal.
