Explained: What SMEs need to know about the new paid family and domestic violence leave

Australian employers will soon need to provide their employees with paid family and domestic violence leave, with the new workplace entitlement set to commence next week for many businesses. 

The change, legislated by the federal government in mid-2022, is designed to offer greater support to individuals who experience family and domestic violence leave, estimated to be in the millions each year. But the entitlement has not escaped criticism from some in the SME sector. 

Here’s what SMEs need to know.

How many days of paid family and domestic violence leave will employees be entitled to?

Employees will be entitled to 10 days of paid family and domestic violence leave each year. According to the Fair Work Ombudsman, employees will be able to access the full 10 days upfront, which means the leave does not need to be accumulated in the same way as personal or annual leave. 

Which employees are entitled to the leave?

All Australian employees that are covered by the Fair Work system are entitled to the leave. This includes part-time and casual workers. 

For full-time and part-time employees, the leave is paid at their full rate of pay for the hours that they would have worked if they weren’t on leave. Casual workers are entitled to their full rate of pay for the hours they were rostered to work during the leave period.

When does the entitlement commence?

For employers with 15 or more employees, the new entitlement will commence on February 1, 2023. 

Employers will need to keep records of leave balances and any leave taken by staff, however, their pay slips must not mention their family and domestic leave, including leave balances and leave taken. 

This is a safety provision to reduce any risks to employees who need to use their family and domestic violence leave.

Is there more time for small businesses?

Yes. Small businesses with fewer than 15 employees will have until August 1, 2023 to make the leave entitlement available to staff. 

When can employees take paid family and domestic violence leave?

The leave is available to employees if they need to do something “to deal with the impact of family and domestic violence”, according to the Fair Work Ombudsman. 

This could include accessing police services, making arrangements for their safety or the safety of a close relative, or attending court hearings, counselling, or other medical, financial or legal appointments. 

Employees must notify their employer as soon as possible if they need to take leave, and in some cases, this could be after the leave commences. Employers can ask for evidence that the employee is unable to do what they need to do outside of work hours, however, they cannot use this evidence for other purposes.

Are workers still entitled to unpaid family and domestic violence leave?

Australian workers are currently entitled to five days of unpaid family and domestic violence leave under the National Employment Standards (NES). The new paid leave replaces this existing entitlement, however, the five days of unpaid leave can still be accessed until the paid leave entitlement comes into effect.

Does the leave accumulate from one year to the next?

No, the leave does not accumulate from year to year if an employee does not use it. Instead, the 10 days will renew each year on the employee’s work anniversary. 

Is there support for small businesses when implementing this new entitlement?

The Fair Work Ombudsman and the Department of Employment and Workplace Relations have been given additional funds to help small businesses implement the new leave entitlement. 

The $3.4 million in funding was included in the October 2022 federal budget and will go towards “education, technical advice and support services”, according to the budget papers. 

Former Council of Small Business Organisations Australia CEO Peter Strong has questioned this, however, pointing out that it equates to $3.78 cents per small business employer. Writing for SmartCompany in December, Strong argued this funding was insufficient and showed “a complete lack of respect for business people”. 

Where can I go for more information?

The Fair Work Ombudsman has detailed information and examples about the use of family and domestic violence leave on its website.