Protecting Worker Entitlements - The Fair Work Act Changes To Be Aware Of

You may have seen that there have been a number of significant changes happening in the employment and industrial relations law space. 

We have been hearing from countless employers that the number of changes have left them feeling overwhelmed and unsure about what they need to be doing to ensure compliance.  Please remember, our employment and industrial relations law team are here to help – so reach out if you need assistance.

In case you have missed our previous articles which discuss certain key changes we have provided a link to where you can find these at the end of this article.

We have also summarised further changes which are being introduced as a result of the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (“Protecting Worker Entitlements Act”) which only recently received royal assent.  

Protecting Worker Entitlements Act

The Protecting Worker Entitlements introduces changes to the Fair Work Act 2009 (Cth) (“FW Act”).  These changes relate to workplace determinations, protection for migrant workers, superannuation in the National Employment Standards (“NES”), employee authorised deductions, unpaid parental leave and the Coal Mining Industry (Long Service Leave Funding) Scheme.

The changes have different start dates. While some of the changes have taken effect already, others start later this year or in 2024. 

We have summarised the changes to be aware of below.

Changes To Unpaid Parental Leave

On 1 July 2023, changes took effect regarding unpaid parental leave which strengthen access to unpaid parental leave and help families share work and caring responsibilities. 

The changes mean that the FW Act will provide greater flexibility to employees taking unpaid parental leave by:

  • Allowing working parents to take up to 100 days of their 12 month leave entitlement flexibly. This is an increase from the previous 30 day entitlement.

  • Allowing employees more choice about when they take flexible unpaid parental leave.  Employees can take flexible leave before, as well as after, any period of continuous unpaid parental leave they may take.  Further, pregnant employees are entitled to take flexible leave in the period up to 6 weeks before birth. Note: Employees must still comply with the notice requirements in the FW Act when taking flexible unpaid parental leave.

  • Removing restrictions which prevented employees from taking more than 8 weeks of unpaid parental leave at the same time as their spouse or de facto partner (known as concurrent leave).

  • Ensuring both parents can take up to 12 months of unpaid parental leave, regardless of the amount of leave the other parent takes. They can also both apply for an extension of up to 12 months without impacting the amount of leave available to the other parent.

These changes align with updates made to the Paid Parental Leave scheme from 1 July 2023 which you can read more about here.

Interaction Rule for Workplace Determinations and Enterprise Agreements

On 1 July 2023, changes took effect regarding workplace determinations. 

Workplace determinations are made by the Fair Work Commission regarding terms and conditions of employment which replace an enterprise agreement in some circumstances. 

The changes add an interaction rule into the FW Act which makes it expressly clear that once a workplace determination that covers employees commences, the previous enterprise agreement will cease to apply to those employees.  

While this is a minor technical amendment, it helps to confirm the understanding of how workplace determinations and enterprise agreements interact.

Protection for Migrant Workers

On 1 July 2023, changes took effect regarding migrant workers.  Specifically, a new provision has been added into the FW Act to deal with the interaction between the FW Act and the Migration Act 1958 (“Migration Act”).

The amendment clarifies that:

  • Migrant workers continue to have the same rights and entitlements under workplace laws as other employees working in Australia regardless of their migration status under the Migration Act; and

  • A breach of the Migration Act does not affect the validity of an employment contract or a contract for services for the purposes of the FW Act.

This includes in circumstances where a migrant worker:

  • Has breached a condition of their visa

  • Does not have work rights; or

  • Does not have the right to be in Australia.

The amendment addresses concerns expressed by stakeholders that there is a need to ensure the application of Australian workplace laws and conditions to migrant workers.

Authorised Employee Deductions

From 30 December 2023, employees are allowed to authorise their employer to make salary deductions that are:

  • Recurring; and

  • For amounts that vary from time to time.

This means an employee can make a single written authorisation that allows their employer to deduct amounts from their salary even where the deduction amount may vary from year to year. This can be withdrawn by the employee in writing at any time.

Currently, a new written authorisation between an employee and employer has to be made if a deduction amount changes.

Employees can continue to allow deductions for specific amounts only. These types of deductions need to be principally for the employee’s benefit and in writing.

 

Right to Superannuation in the NES

From 1 January 2024, a right to superannuation contributions will be included in the NES.

Employers already have an obligation to pay superannuation contributions for eligible employees under superannuation guarantee laws.  There would be no contravention of the NES provision where an employer has met their obligations under such laws.

Including superannuation in the NES ensures that most employees covered by the FW Act have an enforceable right to superannuation where it is unpaid or underpaid.

Currently, employees covered by a modern award or enterprise agreement that includes a requirement for superannuation contributions can apply to a court to enforce such a term. These changes ensure that more employees have this workplace right.  An employee organisation or a Fair Work Inspector can also apply to enforce such a term for the employee’s benefit.

The Australian Taxation Office will continue to have the main responsibility for ensuring compliance with employer obligations under superannuation guarantee laws.

The Fair Work Ombudsman can continue to make referrals involving unpaid superannuation to the ATO.

Casual Employees in the Black Coal Mining Industry

Changes to the Coal Mining Industry (Long Service Leave Funding) Scheme are set to come into effect on 1 January 2024 (or on the earlier of a day fixed by proclamation). These amendments were proposed to ensure that casual employees are treated no less favourably than permanent employees for the purposes of their entitlements under the Scheme.

The changes ensure that an employee’s casual loading will be applied to levy payments by the employer into the Coal Mining Industry (Long Service Leave) Fund and the payment of the long service leave entitlement by the employer to the employee.

Additionally, there will be a change in the calculation method of accrual of a casual employee’s long service leave entitlement.

The Coal Mining Industry (Long Service Leave Funding) Corporation will be required to publish the levy reporting form publicly, with departmental consultation. The levy return form will be publicly available on the Federal Register of Legislation.

Our Previous Articles

Lastest Blog

You can access our previous articles on the McKays Solicitors Blog here: https://www.mckayslaw.com/publications-blog, including:

LinkedIn

We have also published updates regarding various employment matters on our McKays Solicitors – Employment and Industrial Relations Law LinkedIn page: https://www.linkedin.com/company/mckays-employment-ir-law/

In case you do not follow us on LinkedIn, one of the matters we recently posted about relate to significant changes ahead for casuals:

CHANGES AHEAD FOR CASUALS

Employment and Workplace Relations Minister Tony Burke made a number of comments regarding upcoming changes for casuals in a media release on 24 July 2023, as well as in a number of interviews at Parliament House and for ABC RN Breakfast on same date.

Mr Burke said, “As part of the Government's next set of workplace reforms we will close the loophole that leaves people stuck as casuals when they actually work permanent regular hours”. Mr Burke said they will ensure that eligible casuals who want to become permanent can do so.

Mr Burke explained, “We will legislate a fair, objective definition to determine when an employee can be classified as casual. There will be a new pathway for eligible workers to seek permanency, should they wish to do so”.  Mr Burke also said, “The conversion will be effective from the date it occurs, without involving backpay” and “no one will be forced" to convert.

It is said that this will affect more than 850,000 casual workers who have regular work arrangements, giving them greater access to leave entitlements and more financial security if desired.

Much of the existing framework that unions and business groups agreed should not change, including existing processes to offer eligible employees permanent work after 12 months.

You can view the media release and transcripts of Mr Burke’s interviews here.

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