Ten days paid family and domestic violence leave becomes a National Employment Standards entitlement

In brief - The Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (Bill) will amend the Fair Work Act 2009 (Act) to provide for ten days of paid family and domestic violence leave in the National Employment Standards (NES). This will replace the existing entitlement in the NES of five days of unpaid family and domestic violence leave.

Workplace Relations Minister Tony Burke tweeted immediately following the passing of the Bill that "in Australia, one in four women have experienced violence by an intimate partner, and on average one woman is killed by an intimate partner every 10 days. Now there won’t need to be a choice between making it to work or escaping an abuser".

The Bill will:

• provide ten days of paid family and domestic violence leave in a 12 month period for full-time, part-time and casual employees;
• provide employees with  access to paid family and domestic violence leave at their full rate of pay for the hours they would have worked had they not taken the leave, to minimise the financial impact of family and domestic violence;
• extend the definition of family and domestic violence to include the conduct of a current or former intimate partner of an employee or a member of an employee’s household; and
• extend the full paid entitlement to all employees when the International Labour Organisation Convention (No. 190) concerning Violence and Harassment comes into force in Australia.

Is a casual staff member entitled to paid domestic and family violence leave?

In this practical example, Emma is employed at a local clothes store on a casual basis. Every Monday morning her boss texts her and offers her shifts for the forthcoming week. 

On one particular week, Emma is offered shifts on Wednesday, Thursday and Friday. Emma informs her boss that she can work on Wednesday and Thursday, but is unsure about Friday and would let her boss know closer to the date. Emma and her boss agree that she will work Wednesday and Thursday, but will let her boss know about Friday.

On Tuesday, Emma experiences family and domestic violence. Emma is unable to work for the rest of the week as she is dealing with the impact of that violence and it is impractical for Emma to do those things during her work hours.

Emma is entitled to take paid family and domestic violence leave and be paid her full rate of pay for the hours she agreed to work on the phone with her employer on Wednesday and Thursday.

Emma was not rostered for work on Friday. Emma could choose to take a day of paid family and domestic violence leave on Friday, but her employer is not required to pay Emma in relation to that day.

If Emma does choose to access paid family and domestic violence leave on Friday, she will be protected from unlawful adverse action because she exercised her workplace right to take paid family and domestic violence leave.

When do employers need to implement the family and domestic violence leave entitlements?

The provision of ten days’ paid family and domestic violence leave will bring the NES into alignment with the practices of many Australian employers who already provide paid family and domestic violence leave through Enterprise Agreements or workplace policies. 

For employers who haven’t implemented the leave in their Enterprise Agreement, you will have until 1 February 2023 to do so, which is when the new paid entitlement will commence. 

To recognise the unique needs of small businesses with limited human resources, an additional transition period of six months has been provided for employers who meet the definition of small business employer in the Act as of 1 February 2023.