Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022

The Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 amended the Fair Work Act 2009 to replace the previous unpaid entitlement with a paid entitlement. For covered employees, the entitlement is now 10 days of paid family and domestic violence leave in each 12 month period.

This is a National Employment Standards entitlement. In practical terms, that means it is a statutory minimum under the Fair Work Act, not a discretionary workplace perk. Employers cannot provide something less beneficial than the NES through a contract, policy or workplace instrument. If your business already has a family and domestic violence leave clause, the first question is whether it is at least as beneficial as the statutory entitlement and whether it works properly with the amended Fair Work Act rules.

The Act also introduced related rules about payment, confidentiality, pay slips, enterprise agreement interaction, commencement and transition. It later extended the paid family and domestic violence leave framework to certain non-national system employees through Schedule 2.

The main entitlement in Schedule 1 applies to national system employees under the Fair Work Act. For most businesses, that means most private sector employers and employees are within scope. The Act makes clear that the entitlement applies to all covered employees, including full-time, part-time and casual employees.

The Act also extends the paid family and domestic violence leave framework to non-national system employees through Part 6-3 of the Fair Work Act. Schedule 2 commenced on 9 June 2024, but the Act uses a deferred start day for non-national system employees. That deferred start day is the day after the end of the period of 3 months beginning on the day Schedule 2 commenced. Businesses outside the national system should confirm whether they fall within that extended framework before relying on a simplified summary.

If an employee has more than one employer, the entitlement is considered separately for each employment relationship. The Act also contains a special rule for transition purposes for employees engaged as casuals, or for a specified period, task or season. In those cases, the start of employment is taken to be the start of the employee's first employment with that employer.

The entitlement can be used when an employee needs to do something to deal with the impact of family and domestic violence, and it is impractical to do that thing outside the employee's work hours. The Act gives examples of actions that may be covered. These include arranging for the safety of the employee or a close relative, including relocation, attending court hearings, accessing police services, attending counselling, and attending appointments with medical, financial or legal professionals.

The Act also broadens the people who may be relevant to the violence. It refers not only to a close relative of the employee, but also to a member of the employee's household and a current or former intimate partner of the employee.

For employers, the practical point is that this is a purpose-based entitlement. The key questions are whether the employee needs the time to deal with the impact of family and domestic violence and whether it is impractical to do so outside work hours. Businesses should avoid adding extra hurdles that are not found in the Act.

The Act changed the entitlement from 5 days of unpaid leave to 10 days of paid leave. The entitlement is available in full upfront for each 12 month period. It does not accrue progressively and it does not accumulate from year to year.

That upfront structure matters for payroll and leave administration. Businesses should not set this leave up like annual leave or personal leave. If your system accrues leave by hours worked or carries unused balances forward automatically, it may not match the Act.

The Act also says an employee may take paid or unpaid leave in addition to the statutory entitlement. So while the NES sets the minimum 10 day paid entitlement, an employer can still choose to provide more generous support through policy, contract or agreement.

For employees already employed when the amendments started, the Act created transition rules. For non-small business employees, the amendments applied from 1 February 2023, and the period from that date until the first anniversary of the employee's start date was treated as a 12 month period. For small business employees, the same approach applied from 1 August 2023. This means businesses need a reliable way to identify each employee's relevant 12 month period rather than assuming the entitlement runs on a calendar year.

The Act inserted a specific payment rule. If an employee takes a period of paid family and domestic violence leave in accordance with the subdivision, the employer must pay the employee for that period.

For an employee other than a casual employee, payment is at the employee's full rate of pay, worked out as if the employee had not taken the leave. For a casual employee, payment is at the employee's full rate of pay, worked out as if the employee had worked the hours in the period for which the employee was rostered.

The Act goes further and says a casual employee is taken to have been rostered to work hours in a period if the employee has accepted an offer by the employer of work for those hours. This is important for businesses that use shift acceptance apps, text confirmations or ad hoc rostering rather than a fixed published roster.

The Act also makes clear 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 that situation, the employer is not required to pay the employee for that period. So the leave entitlement still exists, but payment only attaches to rostered or accepted hours.

Roster-based employers should make sure managers understand this distinction. A common compliance problem is either refusing the leave because the casual was not rostered, or paying incorrectly because accepted shifts are not being treated as rostered hours for payment purposes.

The Fair Work Act allows an employer to require evidence that would satisfy a reasonable person that the leave is taken for the required purpose. The Act does not prescribe a single mandatory document in the text here. That means employers should focus on whether the material would satisfy a reasonable person, rather than insisting on one document type in every case.

The confidentiality rule is just as important as the evidence rule. The Act says an employer must not, without the employee's consent, use information provided by the employee for a purpose other than satisfying itself about the employee's entitlement to leave under the subdivision. It specifically says an employer must not use that information to take adverse action against an employee.

There are limited exceptions. The employer may deal with the information if doing so is required by an Australian law or is necessary to protect the life, health or safety of the employee or another person. The Act also notes that personal information may be regulated under the Privacy Act 1988.

In practice, businesses should keep leave requests and supporting material tightly controlled. Access should be limited to people who genuinely need it for leave administration or safety reasons. Managers should not treat the information as general performance, conduct or workforce planning material.

The Act amended the pay slip provisions so that a pay slip must not include any information prescribed by the regulations in relation to paid family and domestic violence leave. It also inserted a matching obligation for leave to which a person is entitled because of section 757B under the extended framework.

The Act itself does not set out the actual prescribed information. That means employers should not assume their current payroll labels are safe. A payroll system that identifies this leave too specifically on a pay slip may create a compliance problem if it reveals information the regulations prohibit.

In practice, businesses should review how this leave appears on pay slips, payroll reports and employee self-service portals. The legal rule in the Act is directed at pay slips, but the confidentiality obligations mean employers should also think carefully about internal visibility and naming conventions more broadly.

The Act includes a transition mechanism for pre-commencement enterprise agreements. If a pre-commencement enterprise agreement contains terms that entitle employees to paid family and domestic violence leave, and the Fair Work Commission considers those terms detrimental compared with the NES entitlement, the Commission may vary the agreement to make it consistent with the NES entitlement.

The Commission may also vary a pre-commencement enterprise agreement so it operates effectively with the amended NES provisions and the notice and evidence rules in section 107 to the extent they relate to this leave. A variation can operate from a day specified in the determination, including a day before the determination is made.

Businesses with older enterprise agreements should not assume existing family and domestic violence leave clauses are automatically compliant. The key questions are whether the agreement is at least as beneficial and whether it works properly with the amended statutory framework.

For non-national system employees, the Act also says Commonwealth law is not intended to exclude more beneficial State or Territory laws dealing with family and domestic violence entitlements. So employers outside the national system should check whether a State or Territory entitlement is more beneficial.

The Act received Royal Assent on 9 November 2022. Schedule 1, which introduced the main paid leave amendments, commenced on 1 February 2023.

The transition rules then applied the Schedule 1 amendments to small business employees from 1 August 2023. For employees already employed before the relevant start date, the Act treats the period from that start date until the next employment anniversary as a 12 month period for entitlement purposes.

Schedule 2 commenced on 9 June 2024, when the ILO Convention No. 190 came into force for Australia. For non-national system employees, the Act uses a deferred start day, being the day after the end of the period of 3 months beginning on 9 June 2024.

The Act also requires an independent review of the operation of the amendments. The review must consider the impact on small businesses, sole traders and people experiencing family and domestic violence. It must start as soon as practicable after the end of 12 months after the commencement of Schedule 1, and a written report must then be given to the Minister within 3 months of the commencement of the review.

Because this page is based on the legislation, businesses should still check a few practical points before applying it internally. First, confirm whether you are a national system employer or whether the extended non-national system provisions apply to you. Second, confirm the relevant commencement and transition date for each employee cohort, especially if you are a small business or have long-serving staff. Third, check how your payroll system calculates payment for casuals with rostered or accepted shifts and how it displays leave on pay slips. Fourth, review any enterprise agreement, contract or policy wording against the NES minimum. Finally, make sure managers understand the confidentiality rule and the prohibition on using leave information to take adverse action.

Businesses often need quick answers on a few recurring points. The entitlement is part of the National Employment Standards. It is available upfront, not accrued. It applies to covered casual employees as well as permanent employees. Casual payment depends on rostered or accepted hours, but a casual can still take the leave even if no payment is due for that period. Employers can ask for evidence that would satisfy a reasonable person, but information provided for the leave cannot be used for another purpose without consent except in the limited situations allowed by the Act. The Act also specifically says the information must not be used to take adverse action against an employee.

On payroll, the key point is not to assume that a standard leave label is safe for pay slips. The Act says pay slips must not include prescribed information about this leave. Businesses should check current regulations and payroll outputs before finalising a process.

This page is based on the text of the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 as published on the Federal Register of Legislation. It explains the statutory changes and commencement rules but does not attempt to summarise later guidance, regulations beyond what the Act itself refers to, or later court interpretation.

The official source is available at https://www.legislation.gov.au/C2022A00050/latest.