10 days paid family and domestic violence leave

The introduction of the Bill follows a decision by the Fair Work Commission in May 2022 to amend all Modern Awards to provide for 10 days of paid family and domestic violence leave for all employees who are covered by a Modern Award. The inclusion of the provision in the National Employment Standards will extend the benefit to all employees, irrespective of whether or not they are employed under a Modern Award.

The Bill when passed into Legislation will provide access to the entitlement of 10 days paid family and domestic violence leave from 1 February 2023 for employees of large businesses, and from 1 August 2023 for employees of small businesses. A small business is defined as a business with less than 15 employees.

The leave is different to any other form of leave currently provided for in Australia in that the full entitlement will be available each year and will not accrue throughout the year, unlike other forms of leave such as annual or personal leave. The leave is also not cumulative in that if leave is not accessed in one year, it does not carry over to the following year. The paid leave is capped to 10 days in any one year. This new leave type is also different to existing leave provisions in that casual employees will be entitled to take this form of paid leave, whereas casual employees are generally excluded from paid leave provisions. To access the leave a casual employee must have an expectation that they would have worked at the relevant time, for example, they have been offered and accepted a shift.

The Fair Work Act, 2009 currently defines “family and domestic violence” to mean “violent, threatening or other abusive behaviour by a close relative of an employee that seeks to coerce or control the employee or causes the employee harm or to be fearful”.

The Bill proposed to extend the definition of family and domestic violence” to include conduct of “a member of an employee’s household, or a current or former intimate partner of an employee”.

Although the full scope is not yet clear, examples of where family and domestic violence leave may be taken include for the purposes of:

• making arrangements for their safety or the safety of a close relative, such as a dependent child (including relocation);
• attending urgent court hearings; and
• accessing police services.

Employers may ask an employee to provide evidence that would satisfy a reasonable person of their need to take family and domestic violence leave. Examples of reasonable evidence included documents issued by police or a court, or family violence support service documentation.  Failure to provide reasonable evidence may result in the employee being ineligible to take the paid leave.

We will continue to track the progress of this Bill and provide any updated information when it becomes available. However, given this proposed legislation has bipartisan support and is expected to become law in the near future, now is the time for all employers to start to consider introducing a paid family and domestic violence leave policy in preparation for the commencement of the amended Fair Work Act, 2009.  If you would like assistance with the development of a paid family and domestic violence leave policy, please contact your usual Mazars advisor or alternatively, our HR consulting division via the form below or on: 

Author: Cheryl-Anne Laird

Published: 11/08/2022

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