New updates on paid FDV leave: Here's what HR needs to know

With the paid family and domestic violence (FDV) leave still a subject of much discussion, business experts recently reminded employers to be on the lookout for what is happening and what is to come.

Different labour and legal experts have expressed their opinions and insights about the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022, as reported by HRD, but what should employers know about commercial concerns?

In particular, the Victorian Chamber of Commerce and Industry (VCCI) said that for now, employers need not do anything but closely monitor the developments to be aware if or when they become required to offer employees access to paid FDV leave.

“Some employers are deciding to get in front of developments and proactively offer this entitlement to their employees (for example, by amending contracts of employment or negotiating the entitlement as part of enterprise bargaining discussions),” VCCI said.

What are the developments in FDV Leave?

According to VCCI’s news release, as early as August 2022, two events have prospered concerning FDV leave that employers need to know.

First, the Fair Work Commission (FWC) is presently considering whether to propose a paid FDV leave entitlement into Modern Awards, the Chamber said.

“This means employers hiring workers under a Modern Award will need to monitor developments regarding the specific Award to know if they become obliged in the coming months to provide paid FDV leave to employees under that Award, and which employees can access the entitlement,” the VCCI said.

The Chamber further said that employers should note that some Enterprise Agreements also integrate Modern Awards “as amended,” which means that paid FDV leave obligations could further extend to those employers.

The second development is the Commonwealth Government’s proposed legislation to make FDV leave included in the National Employment Standards (NES) set out in the Fair Work Act 2009.

“The NES applies to most employment in Australia, so all employers will need to monitor the progress of this legislation,” the VCCI said.

“If passed, this legislation would extend paid FDV leave to most Australian employees (we understand the legislation would apply FDV leave to some employers – such as public sector employers – who otherwise would not be covered by the Fair Work Act),” it added.

What are the entitlement proposals?

According to the Victorian Chamber, the FWC and the government intend to propose an entitlement to 10 days of FDV leave annually.

The government’s legislation, which will affect most employers if passed, hopes to make the 10 days of leave available at the beginning of employment and open it to casual employees.

“We also understand the Government legislation is proposing the leave will not be at the employee’s base rate of pay, but rather will at their full rate of pay (including any penalties and allowances the employee might have received if they had not taken the leave),” VCCI said. “Currently, employees are entitled to unpaid FDV leave under the NES.”

When will changes become effective?

The VCCI clarified that implementing the FDV leave developments will still depend on the legislation passing in Parliament.

Moreover, VCCI noted that the legislation has already been introduced to Parliament and referred to a committee for review. It also said a report is expected from the committee in September 2022.

“We understand that, if passed, the Government legislation would commence from 1 February 2023 for most employers (and 1 August 2023 for small business employers – as defined in the Fair Work Act),” VCCI said.

“It is not yet clear how the Government legislation will interact with the Award review process currently being conducted by the FWC,” it added.

The Chamber also reiterated that “the proposed legislation would provide a different entitlement and process compared with the proposed Modern Award entitlement.”

VCCI said it is closely working with the Australian Chamber of Commerce and Industry and other stakeholders to guarantee that the Victorian business community is “heard in relation to these changes.”