On 28 July 2022, the House of Representatives introduced the Paid Family and Domestic Violence Leave Bill (Paid FDVL Bill).
Currently, the Fair Work Act 2009 (Cth) (FW Act) entitles an employee to five days of unpaid family and domestic violence leave per year. Family and domestic violence leave may be accessed if the employee is experiencing family and domestic violence, the employee needs to do something to deal with the impact of the family and domestic violence, and it is impractical for the employee to do that thing outside the employee’s ordinary working hours.
The introduction of the Paid FDVL Bill follows a Decision that was issued by a Full Bench of the Fair Work Commission (FWC) on 16 May 2022 in relation to the proposed introduction of paid family and domestic violence leave in modern awards (Family and Domestic Violence Leave Review 2021  FWCFB 2001) (FDVL Decision). The FDVL Decision largely related to a claim that had been advanced by the ACTU for an entitlement to 10 days of paid family and domestic violence leave in all modern awards for all employees.
In the FDVL Decision, the FWC expressed the provisional view that all awards should be varied to include paid family and domestic violence leave. It also provisionally determined various elements of the entitlement. Relevantly, various aspects of the ACTU’s claim that were opposed by Ai Group were rejected by the FWC. However, many of these aspects of the ACTU’s claim now form part of the Paid FDVL Bill. In summary, the Paid FDVL Bill provides:
- All employees with an entitlement to paid family and domestic violence leave, including casual employees.
- 10 days of paid family and domestic violence leave in full at the start of each 12-month period, including upon commencement of employment. This applies to all employees, including part-time employees.
- Permanent employees would be paid for the leave at their “full rate of pay”, which would be calculated “as if the employee had not taken the period of leave”.
- Casual employees would be paid for the leave at their full rate of pay, for the hours in the period “for which the employee was rostered”. This would include hours of work that were offered and accepted.
- That an employee can take leave if it is impractical for them to do something to deal with the impact of family and domestic violence outside the employee’s “work hours”. It appears that the concept of “work hours” is not intended to be limited to ordinary hours of work and could include overtime.
- That the definition of “family and domestic violence” would be broader than the definition presently contained in the FW Act. It would include circumstances in which such violence was perpetrated by “a member of an employee’s household”.
- That a casual employee can take “a period of paid family and domestic violence leave that does not include hours for which the employee is rostered to work”. In such circumstances, the employee would not be entitled to payment for such leave.
On 4 August 2022, the Senate referred the Paid FDVL Bill to the Education and Employment Legislation (EEL) Committee for inquiry. On 19 August 2022, Ai Group filed a submission to the EEL Committee and appeared in a hearing before the Committee on 22 August 2022. Ai Group raised various concerns with the Paid FDVL Bill, including the following:
- The Paid FDVL Bill departs in various unjustifiable and problematic ways from the FWC’s FDVL Decision, which sought to strike a balance between the interests of employees and employers.
- The FDVL Bill provides that the leave would be paid at a higher rate of pay than contemplated by the FWC and also departs from the FWC’s decision to not extend such an entitlement to casual employees.
- There are also significant practical difficulties that will arise because of the proposed method of calculating the “full rate of pay”, foreseeable uncertainty over the circumstances in which casual employees may be entitled to the leave and an unreasonable absence of any mechanism for ensuring the entitlement operates on a “pro-rata” or proportionate basis for part-time employees relative to full-time employees.