The Federal Government’s Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 was introduced into parliament on 29 March 2023. The proposed laws outline six significant changes to employment entitlements in the Fair Work Act 2009 (Cth) (FW Act), summarised below. The proposed amendments are part of the second tranche of changes following those that were passed last year. You can read about the first tranche of changes in our previous article.
Changes to unpaid parental leave
The Bill seeks to expand access to unpaid parental leave and help families share work and caring responsibilities by:
- Allowing working parents to take up to 20 weeks (previously 6 weeks) of their 12-month unpaid parental leave entitlement flexibly.
- Enabling pregnant employees to access some of the 20-week flexible entitlement up to 6 weeks before the expected date of birth of their child.
- Removing restrictions that prevent employees who are married or in a de facto relationship from taking more than 8 weeks of unpaid parental leave at the same time.
- Ensuring both parents can take up to 12 months’ unpaid parental leave, regardless of the amount of leave the other parent takes. Further, both parents would be able to request an extension of up to 12 months of unpaid parental leave, without impacting the amount of leave available to the other parent. This means each parent may be able to take up to 24 months of unpaid parental leave.
NES entitlement to superannuation
The Bill proposes to insert an entitlement to superannuation in the National Employment Standards (NES).
Employers already have a legislative obligation to pay the superannuation guarantee charge if they do not make contributions to a superannuation fund for the benefit of their employees. However, the proposed amendment seeks to broaden the scope of employees who have an enforceable right to superannuation contributions and to permit employees and unions to directly pursue employers for unpaid superannuation. In doing so, this Bill aims to complement (but not replace) the Australian Taxation Office’s broad regulatory powers to recover superannuation guarantee charge amounts where there is a superannuation guarantee shortfall.
Notably, if superannuation becomes a NES entitlement, employers could be subject to significant civil penalties under the FW Act for failing to make required superannuation contributions.
Authorised deductions
The Bill simplifies and expands on the circumstances in which employees can authorise ongoing deductions from their wages, which are principally for their benefit.
At present, the FW Act does not allow for varying deductions and requires a new written authorisation for each occasion the deduction amount changes.
To address the administrative burden of this current process, the Bill proposes a single authority for agreements between the employee and employer for deductions that are recurring and may vary in amount from time to time.
Offering variable deductions and authorising them remains optional for both employers and employees. There are also limitations, as upper limits for a fluctuating deduction may be specified in the authority and prohibitions exist for varying deductions which directly or indirectly benefit employers.
Increased protections for migrant workers
The Bill clarifies that a breach of the Migration Act 1958 (Cth) or any instrument made under that legislation, does not affect the validity of a contract of employment or contract for services.
The intention of this proposed amendment is to ensure that migrants working in Australia have access to the protections in the FW Act regardless of their immigration status.
Enterprise agreements and workplace determinations
The Bill provides clarity about what happens to an enterprise agreement that is replaced by a workplace determination.
The proposed amendment provides that, if a workplace determination is made that covers an employee in relation to the same employment that an enterprise agreement has previously covered, the latter ceases to apply to that employee in relation to their employment and cannot be applied again. This proposed change is a technical amendment which confirms the common understanding of how workplace determinations interact with enterprise agreements.
Long service leave and the coal mining industry
The Bill proposes amendments which are specific to the coal mining industry, intended to ensure that casual employees are treated no less favourably than permanent employees for the purposes of their entitlements under the Coal Mining Industry (Long Service Leave Funding) Scheme. Specifically:
- A casual employee’s casual loading would 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.
- Updated methods would be provided for calculating the accrual of a casual employees' long service leave entitlement.
- The Coal Mining Industry (Long Service Leave Funding) Corporation would be required to publish the levy return form publicly, via a notifiable instrument after consultation with the Secretary of the Department of Employment and Workplace Relations.
This Alert has been prepared with the assistance of Jack Kneale, Law Graduate.
How we can help?
For advice regarding how the Bill may affect your workplace, contact a member from our Workplace Relations, Employment and Safety team.
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