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

Understanding the operation of the Act requires an examination of several core statutory concepts. The primary concept is "paid family and domestic violence leave," which is defined in Section 12 as paid leave to which a national system employee is entitled under Section 106A. The leave is not an entitlement that accrues progressively over a year based on service. Instead, the full allocation of ten days is available upfront on the first day of an employee's employment and regenerates on each anniversary of their commencement date.

Another critical concept is the expanded definition of the perpetrator of family and domestic violence. Section 106B(2) defines family and domestic violence as violent, threatening, or other abusive behaviour by a close relative of an employee, a member of an employee’s household, or a current or former intimate partner of an employee, that seeks to coerce or control the employee and causes them harm or fear. By adding "a member of an employee's household" and "a current or former intimate partner," the Act extends coverage beyond traditional family relations to encompass modern domestic arrangements and former relationship partners.

The payment mechanism under Section 106BA marks a significant shift from other statutory leave types. For full-time and part-time employees, the employer must pay the employee at their "full rate of pay," calculated as if the employee had worked the period of leave instead of taking it. This means the payment is not limited to the base rate of pay; it includes incentive-based payments and bonuses, loadings, monetary allowances, overtime, penalty rates, and any other separately identifiable amounts that would have been payable had the employee worked.

For casual employees, Section 106BA(1)(b) dictates that they must be paid at their full rate of pay worked out as if they had worked the hours in the period for which they were rostered. Under Section 106BA(2), a casual employee is taken to have been rostered to work hours in a period if they accepted an offer of work for those hours. While Section 106BA(3) permits casual employees to take paid family and domestic violence leave during non-rostered hours, employers are not required to pay them for any hours where no rostered shift or accepted offer of work existed.

The Act also introduces the concept of "extended paid family and domestic violence leave provisions" under Section 757B(4). This concept refers to the application of the National Employment Standards leave provisions to non-national system employees and employers, adapted through specific constitutional bridges and modified to ensure compatibility with state-based industrial relations frameworks.

The Act directly affects national system employers and employees across Australia, spanning both the private sector and non-government organizations. This includes full-time, part-time, and casual employees. By including casual employees within the scope of paid leave, the Act departs from traditional Australian leave frameworks where casuals receive a loading in lieu of paid leave entitlements. Under this Act, casuals who have accepted rostered shifts have a statutory right to be paid for those hours if they need to be absent due to family and domestic violence.

Small business employers, defined under the Fair Work Act 2009 (Cth) as those employing fewer than 15 employees, are heavily affected. While they were granted a transitional delay until 1 August 2023 to prepare for the financial and payroll administrative burdens of the scheme, they are now subject to the same compliance standards as larger employers. Sole traders who employ staff are similarly bound by these obligations, and their operational challenges are specifically highlighted as a focus area for the statutory review mandated by Section 4.

The Act also affects non-national system employers and employees. Through Part 6-3 Division 2A, the legislation extends these paid leave entitlements to employees who work outside the federal industrial relations system. This group includes state public sector employees and local government employees in jurisdictions that have not referred their industrial relations powers to the Commonwealth.

Payroll professionals, accountants, and human resources compliance specialists are significantly affected. They must manage the complex task of processing leave payments at the "full rate of pay" (incorporating loadings, overtime, and allowances) while complying with strict payslip confidentiality requirements.

Finally, the Fair Work Commission (FWC) is affected. Under Clause 53 of Schedule 1, the FWC is granted the power to vary pre-commencement enterprise agreements. If an employer, employee, or employee organization covered by an older agreement applies to the FWC, and the Commission finds that the agreement's family and domestic violence leave terms are detrimental compared to the NES entitlement, the FWC may vary the agreement to align it with the new statutory standards.

The principal right established by the Act is the employee’s entitlement to ten days of paid family and domestic violence leave in a 12-month period under Section 106A(1). This leave does not accumulate from year to year; any unused portion lapses at the end of the 12-month period. Under Section 106B(1), an employee has the right to take this leave if they are experiencing family and domestic violence, need to do something to deal with the impact of that violence, and it is impractical to do so outside their work hours. Section 106B(1) lists non-exhaustive examples of covered actions, including arranging for safety or relocation, attending court hearings, accessing police services, attending counselling, and attending appointments with medical, financial, or legal professionals.

Corresponding to this right is the employer's absolute duty under Section 106BA to pay the employee at their full rate of pay for the hours they would have worked during the leave period. This duty applies to permanent employees and to casual employees for their rostered hours.

Employers are also bound by strict confidentiality duties under Section 106C. An employer must not, unless the employee consents, use any information or evidence provided by the employee for purposes other than satisfying itself of the employee's entitlement to the leave. Section 106C(2) explicitly prohibits employers from using such information to take adverse action against the employee. These confidentiality obligations are subject only to limited exceptions under Section 106C(4), which permits dealing with the information if required by an Australian law or if necessary to protect the life, health, or safety of the employee or another person.

Another key duty relates to pay slips. Under Section 536(2)(c) and Section 757BA, employers have a duty not to include prescribed information regarding paid family and domestic violence leave on an employee's pay slip. This duty prevents employers from detailing that an employee took family and domestic violence leave, reducing the risk that a perpetrator with access to the employee's financial documents or digital payroll portal might discover that the employee is seeking assistance, taking time off, or planning relocation.

Finally, under Section 107 of the Fair Work Act, which continues to apply to the paid leave framework, employees have a duty to give their employer notice of the taking of leave as soon as practicable, alongside evidence that would satisfy a reasonable person that the leave is being taken for the specified statutory purpose.

The Act enforces compliance through the existing civil remedy framework of the Fair Work Act 2009 (Cth). Section 757C explicitly declares that an employer must not contravene the extended paid family and domestic violence leave provisions. This section operates as a civil remedy provision, meaning that a breach can result in substantial financial penalties.

Under the civil remedy table in Section 539(2), a new item 34AA is inserted to address contraventions of Section 757C. The maximum penalty for a breach of this provision is set at 60 penalty units. These penalty units are calculated in accordance with the Crimes Act 1914 (Cth) and are subject to periodic indexation. For corporate entities, the maximum penalty is multiplied by five times the individual rate under standard Fair Work Act rules.

Parties with standing to bring an action in relation to an alleged contravention of Section 757C include:

• An employee affected by the contravention;
• A registered employee association (such as a trade union) that represents the affected employee; and
• A Fair Work Inspector.

The courts vested with jurisdiction to hear these matters and impose civil penalties are:

• The Federal Court of Australia;
• The Federal Circuit and Family Court of Australia (Division 2); and
• Eligible State or Territory courts, such as Magistrates Courts or District Courts with industrial jurisdiction.

To prevent the compounding of penalties for related administrative or payroll errors, Section 557(2)(pa) is inserted. This amendment groups contraventions of Section 757C into the "course of conduct" rules. Under these rules, if an employer commits multiple breaches of the extended paid leave provisions that arise from a single course of conduct, those breaches are treated as a single contravention for the purpose of assessing civil penalties. This limits the compounding of fines for systemic, unintentional payroll configuration errors, while maintaining full exposure to penalties for separate, distinct violations.

In addition to civil penalties, the Fair Work Ombudsman can issue compliance notices, and affected employees can seek recovery of unpaid leave wages through small claims procedures or formal court applications. If an employer uses information disclosed during a leave application to dismiss or otherwise penalize an employee, they also face exposure under the general protections regime of the Fair Work Act 2009 (Cth) for taking prohibited adverse action.

The Act modifies and interacts with several federal, state, and territory laws. A primary point of interaction is with other leave provisions in the Fair Work Act 2009 (Cth). Section 98 is repealed and substituted to govern the interaction between paid personal/carer's leave and other absences. Section 98(1) ensures that if an employee takes paid personal/carer's leave on a day that is a public holiday, they are taken not to be on personal/carer's leave. More importantly, Section 98(2) dictates that if an employee is on a period of paid personal/carer's leave and takes paid family and domestic violence leave, they are taken not to be on paid personal/carer's leave for that overlapping period. This mechanism preserves the employee’s accrued personal/carer's leave balance, prioritizing the non-accruing paid family and domestic violence leave.

The Act also interacts with the Privacy Act 1988 (Cth). A note to Section 106C explicitly alerts employers that any information provided by an employee in support of a leave claim that constitutes "personal information" may also be regulated under the Privacy Act 1988 (Cth). This creates a dual compliance burden where employers must satisfy both the specific non-disclosure requirements of the Fair Work Act and the broader Australian Privacy Principles (APPs) concerning the collection, storage, use, and disclosure of sensitive personal data.

To manage the interface between federal and state jurisdictions, the Act establishes clear boundaries regarding state and territory laws. Section 757E declares that the Act does not exclude state or territory laws that provide employee entitlements regarding family and domestic violence, provided those state laws apply to non-national system employees and offer entitlements that are more beneficial than the extended federal provisions. This prevents the federal law from inadvertently cutting back superior state-based public sector or local government entitlements.

Furthermore, Schedule 2 represents a direct constitutional interaction. By explicitly linking the extension of these entitlements to the ILO Convention (No. 190) concerning Violence and Harassment, the federal legislature relies on the external affairs power under Section 51(xxix) of the Constitution. This constitutional mechanism allows the Commonwealth to pass laws that bind non-national system employers, overriding traditional state-federal jurisdictional divides in industrial relations.

The Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (No. 50, 2022) was introduced into the House of Representatives on 28 July 2022. It passed the House and was introduced into the Senate on 8 September 2022. Following its passage through both chambers of the Federal Parliament, the Act received Royal Assent on 9 November 2022.

Historically, the National Employment Standards included only an entitlement to five days of unpaid family and domestic violence leave. This unpaid entitlement was the result of prior amendments to the Fair Work Act 2009 (Cth) designed to establish a minimum safety net. The 2022 amending Act systematically repealed these unpaid provisions, removing the definition of "unpaid family and domestic violence leave" from Section 12 and substituting "paid" leave across Division 7 of Part 2-2.

The commencement of the amendments was structured across two distinct schedules, each with its own timeline:

• Sections 1 to 4 and any general administrative provisions commenced on the day of Royal Assent, 9 November 2022.
• Schedule 1, containing the main amendments converting the leave from unpaid to paid for national system employees, commenced on 1 February 2023.
• A transitional provision in Schedule 1 Part 12 delayed the operational application of Schedule 1 for small business employees until 1 August 2023.

Schedule 2, which extends the paid leave regime to non-national system employees and addresses victims of crime leave, was tied to Australia's international obligations. Its commencement was contingent on the day the ILO Convention (No. 190) concerning Violence and Harassment entered into force for Australia. The Act specified that if the Convention did not come into force on or before 1 February 2025, Schedule 2 would not commence at all. The Convention came into force for Australia on 9 June 2024, triggering the commencement of Schedule 2 on that date, as announced by the Minister via a notifiable instrument (F2023N00575). Under Clause 54 of Schedule 1, the operational provisions for non-national system employees applied from the "deferred start day," which occurred three months after Schedule 2 commenced.

As an amending Act designed to alter the core text of the Fair Work Act 2009 (Cth), the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 does not contain an independent body of historical litigation within its statutory text. Instead, the litigation and dispute resolution history under these provisions is channeled through the Fair Work Commission (FWC) and the federal court system.

The primary litigation-adjacent mechanism established by the Act is found in Clause 53 of Schedule 1. This clause governs how pre-commencement enterprise agreements interact with the new paid leave standards. It allows an employer, employee, or employee organization (union) covered by an enterprise agreement made before 1 February 2023 to apply directly to the FWC for a variation. The FWC has the power to vary the agreement if:

• The agreement contains terms entitling employees to paid family and domestic violence leave; and
• The FWC considers that those terms are detrimental when compared to the new ten-day paid NES entitlement.

This provision has led to administrative determinations by the FWC to vary outdated enterprise agreements, ensuring that negotiated workplace agreements do not fall below the statutory floor. The FWC is also empowered to make determinations varying agreements to ensure they operate effectively alongside Section 107's notice and evidence requirements. Under Clause 53(3), any such variation can operate retrospectively from a day specified in the determination, which can be a day prior to when the FWC actually made the decision.

Wider litigation regarding these provisions typically centers on general protections disputes, where employees allege they were subjected to adverse action (such as dismissal or demotion) after exercising their statutory right to take paid family and domestic violence leave. Because Section 106C(2) explicitly prohibits using leave-related information to take adverse action, any breach of this non-disclosure and non-retaliation standard feeds into the broader civil penalty and general protections litigation history of the Federal Court and the Federal Circuit and Family Court of Australia.

For compliance professionals, lawyers, and accountants, several aspects of the Act present elevated risks of non-compliance and administrative error.

The first major risk area is the upfront nature of the entitlement. Unlike annual leave or personal/carer's leave, which accrue progressively over a period of service, the ten days of paid family and domestic violence leave are available in full on day one of employment. Under Clause 52, there is no pro-rata calculation for part-time or casual employees, and there is no qualifying period. An employee who starts their first day of work is immediately entitled to the full ten days.

The pay slip restriction under Section 536(2)(c) and Section 757BA presents a significant technical and compliance challenge. Employers are prohibited from recording on a pay slip that an employee has taken paid family and domestic violence leave. Standard payroll software that automatically generates line items such as "Paid FDV Leave" will place the employer in direct breach of the regulations. Compliance requires payroll administrators to manually or systematically code these absences under alternative, non-identifying descriptors, such as ordinary hours worked, miscellaneous leave, or general paid leave, while simultaneously maintaining accurate, highly confidential internal records to track the employee's remaining leave balance.

Calculating the "full rate of pay" for casual employees under Section 106BA is another point of confusion. Payment must be worked out as if the casual employee had worked the hours of a rostered shift they had accepted. If a casual employee's rostered hours vary or are subject to irregular penalty rates, loadings, or overtime, payroll cannot simply apply a flat base rate. The employer must recreate the exact earnings profile of the missed shift. However, if a casual employee requests leave for a period where they were not rostered or had not accepted an offer of work, the employer may grant the leave but is under no statutory obligation to pay them.

The tension between the employer's right to request evidence under Section 107 and the strict confidentiality mandate under Section 106C represents a severe legal risk. While an employer can ask for evidence (such as a police report, court document, or medical certificate) to substantiate the leave, they must handle this evidence with extreme care. Storing this sensitive information in a standard HR file accessible by line managers may lead to a breach of Section 106C(2) if the information is subsequently used, even subconsciously, in performance reviews, promotion decisions, or redundancy selections.

Finally, the transition dates require careful management. Clause 52 and Clause 54 create complex transitional rules where an existing employee's "leave year" must be calculated based on the anniversary of their start date, with a deemed 12-month period running from the relevant commencement date (1 February 2023 for non-small business employees, 1 August 2023 for small business employees, and the deferred start day for non-national system employees) until their next employment anniversary.

To ensure compliance with the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022, organizations must systematically update their HR policies, payroll configurations, manager training, and record-keeping systems.

First, human resources departments must update all template employment contracts, employee handbooks, and leave policies. Any reference to "five days of unpaid family and domestic violence leave" must be removed and replaced with "ten days of paid family and domestic violence leave." The policies must clarify that:

• The ten days are provided in full on day one of employment;
• The leave does not accumulate from year to year; and
• The entitlement is renewed annually on the anniversary of the employee's start date.

Second, payroll systems must be reconfigured to comply with the pay slip non-disclosure regulations under Section 536(2)(c). Compliance professionals must ensure that any paid family and domestic violence leave taken is recorded on pay slips as ordinary hours of work, or as another type of general leave (such as miscellaneous or special leave), depending on the specific regulations and the employee's preference. Under no circumstances should the words "family and domestic violence leave," "FDV leave," or any similar identifying terms appear on a pay slip.

Third, the payroll department must establish a secure, dual-record system. While the pay slip must show a generic description, the employer must maintain an internal, highly restricted record of the leave taken to accurately manage the employee’s balance. Access to this internal register must be strictly limited to essential HR and payroll personnel to comply with the confidentiality mandate in Section 106C.

Fourth, employers must implement a clear protocol for requesting and handling evidence under Section 107. If an employer chooses to request evidence, the protocol must dictate that:

• Only designated HR personnel or senior managers may view the evidence;
• The evidence is not to be photocopied, scanned, or uploaded to a general employee file unless absolutely necessary; and
• Any digital copies of such evidence must be stored in a secure, encrypted folder with restricted access permissions, completely separate from the standard employee personnel file.

Fifth, operations managers and roster builders must be trained on the rules governing casual employees under Section 106BA. If a casual employee discloses they cannot work a rostered shift they have already accepted due to domestic violence, the manager must ensure that the shift is not simply deleted from the roster. Instead, the shift must be processed through payroll as paid family and domestic violence leave at the full rate of pay the employee would have received had they worked.

Finally, compliance teams should conduct a review of any existing enterprise agreements. If the organization operates under a pre-commencement enterprise agreement that contains outdated, less beneficial, or unpaid family and domestic violence leave terms, the legal team should consider making an application to the Fair Work Commission under Clause 53 of Schedule 1 to vary the agreement, thereby ensuring alignment with the National Employment Standards.