Circular 2022/12: Changes to the Fair Work Act 2009 to include 10 days’ paid family and domestic violence leave in the National Employment Standards

Purpose

1. The purpose of this Circular is to inform agencies of changes to the Fair Work Act 2009 (the FW Act) following the passage of the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022, which passed both Houses of Parliament on 27 October 2022.
2. The Australian Government is committed to supporting all Commonwealth employees affected by family and domestic violence, and acknowledges that family and domestic violence is a workplace issue.
3. As a model employer, it is the Government’s expectation that Commonwealth agencies provide support for employees affected by family and domestic violence which meet and exceed the entitlements that come into effect on 1 February 2023.

Summary of key amendments

4. The amendments to the FW Act enshrine, as a new National Employment Standard (NES),
   10 days’ paid family and domestic violence leave each year to all Australian workers covered by the FW Act.
5. This new paid leave entitlement replaces the five days’ unpaid leave currently in the NES and comes into effect on 1 February 2023. The leave is available, in full, to full-time employees and also part-time and casual employees where those employees are scheduled/rostered to work.
6. Consistent with the current FW Act arrangements, employees are able to access paid family and domestic violence leave if they are experiencing family and domestic violence, and need support or to access services to deal with the impact of family and domestic violence which is impractical to do outside of work hours. This could include making arrangements for their own safety or the safety of a close relative, court appearances, accessing police services, attending counselling and attending appointments with medical, financial or legal professionals.
7. The current FW Act definition of ‘family and domestic violence’ has been amended. Currently limited to violent, threatening or other abusive behaviour by a ‘close relative’ (as defined by the FW Act) of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful, the definition will now extend to the actions of ‘a member of the employee’s household, or a current or former intimate partner of an employee’.
8. The FW Act amendments will extend the paid family and domestic violence leave entitlement to non-national system employees once the International Labour Organization Convention on Violence and Harassment (No. 190) comes into force for Australia.
9. Matters that agencies should consider in preparation for these changes are covered further below.

Administration of leave and support

10. Model employer. Agencies are generally already able to provide miscellaneous leave for employees affected by family and domestic violence. This leave is uncapped, and its nondescript recording protects employee privacy and safety.
11. Agencies may need to put in place additional arrangements where casual employees do not qualify for existing miscellaneous leave entitlements. Agencies may create determinations under section 24(1) of the Public Service Act 1999 or other agency employment legislation to put in place alternative measures that facilitate access to paid leave for family and domestic violence leave purposes for casual employees.
12. Agency delegates who are responsible for approving applications for leave and other supports related to family and domestic violence should do so in a way that recognises the privacy and safety of employees is paramount.
13. In keeping with the Government’s model employer expectations, agencies are not limited to only providing 10 days’ paid leave (including for casual employees). Agencies should ensure maximum support is provided to affected employees as appropriate to the situation, including the granting of more than 10 days’ paid leave where an employee is in need of additional paid leave.
14. Interaction with other forms of paid leave. There may be times where an employee chooses to access personal/carer’s leave rather than apply for miscellaneous leave. Personal/carer’s leave is available to an employee experiencing family and domestic violence (where appropriate), however as a model employer agencies are encouraged to offer paid miscellaneous leave in lieu of employees being required to access personal/carer’s leave unless that is the employee’s preference.
15. Where an employee is on approved annual or personal/carer’s leave and miscellaneous leave is accessed during that period the employee is no longer on the other form of paid leave, and the approved annual or personal/carer’s leave is to be re-credited.
16. Payslips. The FW Act amendments impose an obligation on employers to ensure pay slips do not display use of paid family and domestic violence leave.  This is so information about the leave is not disclosed to other employees or potentially the perpetrator of the family and domestic violence.
17. Record keeping secrecy. It is essential that any method of record keeping for leave or other support related to family and domestic violence does not put employees at risk of harm or violation of privacy. It must be held in strict secrecy and on a need to know basis. Agencies are encouraged to continue use of miscellaneous leave provisions and not to create identifiable leave types in payroll systems, as this may compromise employee safety.
18. Full rate of pay. Agencies must ensure that, from the commencement of the amendments on 1 February 2023, the correct amount is paid when an employee is accessing paid leave for family and domestic violence purposes as this leave is treated differently to pay during annual or personal/carer’s leave.
19. From 1 February 2023, paid leave for family and domestic violence purposes is to be paid at the full rate of pay for the hours worked, had the employee not taken the leave. As such, incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates and any other separately identifiable amounts must be included. ‘Full rate of pay’ is defined in Section 18 of the FW Act.

Supporting Commonwealth employees affected by family and domestic violence

20. Agencies do not need to wait for the 1 February 2023 commencement date of these legislative changes, and can facilitate paid leave through existing entitlements in enterprise agreements.
21. Agencies should already have policies and practices in place that provide maximum support to employees affected by family and domestic violence. The APSC has developed a template family and domestic violence support policy that agencies can refer to for assistance in developing policies for supporting employees affected by family and domestic violence.
22. Further information on how agencies can support employees experiencing family and domestic violence is available on the APSC website.

Further information

23. The Fair Work Ombudsman’s website has more information on how the amendments will operate once they are effective from 1 February 2023 – https://www.fairwork.gov.au/newsroom/news/new-paid-family-and-domestic-violence-leave.
24. If you have questions about this circular, please contact workplacerelations@apsc.gov.au.

This circular supersedes and entirely replaces Circular 2018/3: Family and Domestic Violence Leave: Changes to the National Employment Standards