Paid Family and Domestic Violence Leave: 10 Days Under Section 106B

The statutory entitlement

Section: The statutory entitlement

Section 106B of the Fair Work Act 2009 provides every employee with 10 days of paid family and domestic violence leave (FDVL) within each 12-month period of their employment. This entitlement is one of the National Employment Standards 11 entitlements deep dive and was introduced by the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022.

The FDVL entitlement applies to all employees, regardless of employment type – including full-time, part-time, and casual employees. The leave does not accumulate from one year to the next, meaning any unused leave is forfeited at the end of the 12-month period.

The leave renews annually on the anniversary of the employee’s start date. It is available in full from the employee’s first day of employment and does not accrue progressively over time.

Commencement and coverage

The paid family and domestic violence leave entitlement commenced on different dates depending on the size of the employer. Employees of non-small business employers (those with 15 or more employees) had this entitlement from 1 February 2023. Employees of small businesses (those with fewer than 15 employees) had the entitlement from 1 August 2023.

This entitlement replaces the previous unpaid family and domestic violence leave entitlement that was available under the National Employment Standards (NES) since 12 December 2018.

'Family and domestic violence' is broadly defined for the purposes of this leave. Section 106A provides this definition, encompassing violent, threatening or other abusive behaviour by a close relative, member of the employee's household, or current or former intimate partner that seeks to coerce, control or causes them harm or fear.

When the leave can be taken

The paid family and domestic violence leave can be taken to deal with the impact of family and domestic violence. This may include actions such as arranging for the safety of the employee or a close relative, which could involve relocation. Other examples include attending court hearings, accessing police services, attending counselling, and attending appointments with medical, financial or legal professionals. Section 106B(2) allows the leave to be taken when it is impractical to undertake these actions outside of the employee’s ordinary hours.

Employees must provide notice to their employer as soon as practicable when taking this leave. Employers may require the employee to provide evidence that would satisfy a reasonable person regarding the need for the leave.

Information relating to an employee’s use of paid family and domestic violence leave is considered confidential. Section 106C requires employers to maintain the confidentiality of this information.

How it is paid

Paid Family and Domestic Violence Leave (FDVL) is paid at the employee’s ‘full rate of pay’ for the hours they would have worked had they not taken the leave. This applies to all employees, including full-time, part-time and casual employees.

For casual employees, the full rate of pay is the rate they would have received for the hours they were rostered to work.

Employers must ensure pay slips do not include information that says or suggests the leave was FDVL. Instead, it should be recorded generically as paid leave. Section 106C and s 535 also impose strict confidentiality and record-keeping obligations.