The second tranche of workplace relations reforms have now received Royal Assent, bringing into force the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Cth) (Entitlements Act) on 1 July 2023.  The Entitlements Act amends the Fair Work Act 2009 (Cth) (FW Act) and associated legislation with a broad aim of protecting worker entitlements.

The amendments under the Entitlements Act have a variety of commencement dates between the day of Royal Assent (1 July 2023) and 1 January 2024.  It is important that employers are aware of the changes and how these changes will impact the workplace.

Unpaid Parental Leave

The Entitlements Act expands on the existing unpaid parental leave provisions of the FW Act by introducing the following amendments:

• employees are entitled to 100 days of flexible unpaid parental leave;

• employees can commence unpaid parental leave within 24 months of the birth or placement of a child;

• a pregnant employee can access flexible unpaid parental leave in the six weeks prior to the expected birth of their child;

• employees can take up to 12 months of unpaid parental leave and request a further 12 months of unpaid parental leave irrespective of the amount of leave the other parent has taken; and

• the limit on couples taking concurrent unpaid parental leave will be removed.

The Entitlements Act also replaces gendered language (such as he, she and maternity leave) with gender neutral terms such as ‘the employee’ and ‘parental leave’.  The introduction of gender-neutral language ensures that any parent can equally utilise unpaid parental leave provisions.

These changes take effect on 1 July 2023.

Superannuation

The Entitlements Act creates an entitlement to superannuation in the National Employment Standards (NES).  

Employers are currently required to pay a superannuation guarantee charge if they fail to make superannuation contributions into a fund for the benefit of their employees.  However, there was previously no FW Act right for an employee to be paid superannuation.

Failing to make superannuation contributions will result in a contravention of the FW Act.  Employees, registered employer organisations and the Fair Work Ombudsman can bring proceedings to recover unpaid superannuation contributions.  Applicants can seek recovery of the unpaid superannuation contributions, along with other orders such as compensation. 

It is intended that the right to superannuation in the NES enables employees to recover superannuation in a manner that is complementary to the ATO’s current role.  For example, NES proceedings cannot be commenced if the ATO has commenced proceedings to recover a superannuation shortfall.

These changes take effect on 1 January 2024.

Employee Authorised Deductions

Section 324 of the FW Act permits an employer to deduct amounts from an employee’s pay where the deduction is:

• authorised in writing by the employee;

• principally for the employee’s benefit; and

• for the same amount as specified in the employee’s authorisation.

 The Entitlements Act expands on the current deductions provisions to enable an employee to authorise regular deductions of varying amounts from their wages where the deductions are principally for their benefit.  This is a mechanism not currently permitted by the FW Act.

In accordance with these changes, an employee can authorise a deduction for a specified amount or amounts, or for amounts as varied from time to time.  It is anticipated that the expansion of employee authorised deductions will reduce the administrative burden by removing the need for an employee to provide a new written authority on each occasion.

These changes take effect on 30 December 2023.

Increased Protections for Migrant Workers

The Entitlements Act clarifies that a breach of the Migration Act 1958 (Cth), or any instrument made under the Migration Act, does not affect the validity of an employment contract or contract for services for the purposes of the FW Act.  Consequently, migrant workers (including temporary migrant workers) will be entitled to the benefit of the FW Act irrespective of their migration status.

These changes extend to circumstances where a migrant worker has breached a visa condition, does not have work rights or does not have the right to be in Australia.

These changes were introduced in response to recommendations made by the Migrant Workers’ Taskforce and the Senate Education and Employment Legislation Committee.

These changes take effect on 1 July 2023.

Coal Mining Long Service Leave

The Entitlements Act makes technical amendments to the Coal Mining long service leave scheme to ensure casual employees are treated no less favourably than permanent employees in the context of accruing and accessing long service leave entitlements.  The changes include amending the definition of qualifying service, working hours and eligible wages and introducing the concept of an applicable week.

These changes take effect on a day fixed by proclamation or 1 January 2024 (the earlier of the two).

Workplace Determinations

The Entitlement Act makes a minor amendment to the FW Act to clarify that an enterprise agreement ceases to apply when it is replaced by a workplace determination.

These changes take effect on 1 July 2023.

What should employers do in anticipation of the changes?

These changes arising will require employers to review their policies and procedures, payroll practices and employment agreements. 

To discuss the impact of these changes on your workplace, or for any other employment related questions contact the Sladen Legal Workplace Relations Team:

Jasmine O’Brien
Principal
T +61 3 9611 0149
jobrien@sladen.com.au

Jordan Bauer
Senior Associate
T +61 3 9611 0130
jbauer@sladen.com.au