Family and Domestic Violence Leave extends to employees working for small businesses

Effective from 1st August 2023, the coverage of paid family and domestic violence leave will be extended to employees working for small business employers (with fewer than 15 employees) that was previously limited to non-small business employers.

From 1 February 2023, employees of non-small business employers (employers with 15 or more employees on 1 February 2023) were able to access 10 days of paid family and domestic violence leave per annum.  

 What is changing?  

Employees employed by small business employers (employers with less than 15 employees) will be able to access 10 days paid leave per annum from 1 August 2023.  It will be a minimum leave entitlement such as annual, sick and carer’s leave. 

The leave entitlement will be available to part-time and casual employees. It is not pro-rated for part-time or casual employees. 

It is an entitlement upfront and will not accumulate from year to year if it is not used. 

What is the leave used for? 

The leave can be taken to deal with the impacts of family and domestic violence where it is not practical to do so outside of their working hours.  

This might include: 

• Making arrangements for their own or a family member’s safety including relocation 
• Attending court or accessing police services 
• Attending counselling, or appointments with medical, financial, or legal professionals.

The leave can be taken as single or multiple days, or as part days by agreement with the employer.  

Can an employer ask the employee to provide evidence? 

An employer can request for evidence to show the employee needs to attend to something and it is not practical to attend to it outside their work hours.  

Types of evidence an employee may provide include: 

• A Statutory Declaration 
• Family violence support service documents 
• Documents issued by a police service, or 
• Documents issued by a court.

Employers must take reasonable steps to keep information about notice or evidence for family and domestic violence leave confidential. 

How much is to paid to an employee? 

For full-time or part-time employees leave must be paid at the employee’s full rate of pay for the hours they would have worked had they not taken leave. 

Casual employees must be paid at their full rate of pay for the hours they were rostered to work in the period they took leave. 

The employee’s full pay rate is their base rate plus any loadings, allowances, overtime and penalty rates, bonuses, incentive payments or other separately identifiable amounts. 

Is superannuation payable ? 

Paid family and domestic violence leave is considered Ordinary Time Earnings (OTE), therefore superannuation is payable.  

How are these payments to be shown on the payslip? 

The pay slip must not categorise the amount as family and domestic violence leave payments. 

The earnings must be shown as ordinary hours of work, or another kind of payment for performing work such as an allowance, bonus or overtime payment.  It is best practice to show these amounts on the pay slip in a way that makes it appear the employee has not taken leave. 

Employers must also keep a record of the accrued leave balance and leave taken by employee outside of the payroll system. Payslips must not show family and domestic leave days being taken or the accrued leave balance. 

What if an employers fail to comply with the family and domestic violence provisions? 

Non-compliance with paid family and domestic violence leave provisions will give rise to breaches of the civil remedy provisions under Part 4-1 of the Fair Work Act, exposing employers and individuals such as managers, to prosecution and significant monetary penalties. 

What does this mean for small business employers? 

Employers must ensure they comply with the new laws and provide these benefits to relevant employees. 

Employers should:

• Provide education and training to managers on the content of the new laws and how to deal with applications for the leave 
• Communicate the relevant changes to staff 
• Review and update payroll systems, policies and procedures to ensure compliance 
• Consider reviewing and changing employment contracts to include new leave entitlements 
• Restrict record keeping and communication to in person and in writing (in an employee’s physical file) at the workplace. This is for the safety of the victim, as domestic violence offenders will often have access to the victim’s email, work logins and physical mail 
• Implement record-keeping arrangements to track leave taken and leave accrued 
• Begin planning and budgeting for payments.

How can SW help   

• SW has an experienced outsourcing team to assist with your payroll function. We assist employers in understanding and becoming familiar with the new requirements to make this change as easy as possible, while also ensuring employers are meeting compliance requirements  
• Review and assist with updating the payroll systems to ensure compliance 
• Review processing of leave payments and disclosure on payslips 
• Assist with implementing and record-keeping arrangements to track leave taken and leave accrued outside of the payroll system.