The new Albanese Labor government has introduced a bill that puts into the National Employment Standards (NES) a universal entitlement for 10 day paid family and domestic violence leave (FDVL).

It will replace the current NES entitlement of five days unpaid FDVL. This new FDVL is available for employees who need time off work to deal with issues or impacts of family and domestic violence which cannot be done outside their normal working hours. It is in contrast with the Fair Work Commission narrower model which advocating for a more limited form of paid FDVL.

The differences are: –

• The new FDVL is available up front as soon as employees commences working for your business
• It is paid at a higher rate rather than at a base rate
• It is accessible for all employees, including casuals who have accepted work and have been rostered on
• It does not accrue annually but is available in full (10 days) at the start of every year
• It is not paid at base rate but rather includes what the employee would have normally earnt instead of taking leave. These differences mean an employer will need to work out what the employee would have normally earnt (including loadings and allowances, commissions and incentive payments).
• Changes include FDV conduct by a member of an employee’s household, a current or former intimate partner
• The entitlement also extends to non-national system employees

The new form of FDVL paid leave will apply to all national system employees as well as those employed under enterprise agreements.  

Any ambiguities and inconsistencies between the new NES entitlements and the existing enterprise agreement entitlements can be taken to the Fair Work Commission for resolution.

The government is at odds with the Fair Work Commission which determined that paid FDVL should not be paid up front, should accrue and limited to 10 days and be paid at base rates.

The new Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 does not follow the Fair Work Commissions approach.

The changes will apply and commence on 1 February 2023 for all employers other than small business employers. Small business owners (less than 15 employees) have an additional 6 months to make payroll and other necessary adjustments.

Contact Suzanne Diprose @ Performance Advantage for further clarification on this matter.