The Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 finally passed both the houses on 22 June 2023, and is likely to get the Governor’s assent soon. Here is how it would amend the Fair Work Act once it gets the assent. These proposed amendments aim to enhance worker entitlements, promote flexibility, and provide clarity in various aspects of employment under the Fair Work Act 2009 (Cth).
Changes to Unpaid Parental Leave
The bill aims to enhance access to unpaid parental leave and promote shared work and caregiving responsibilities within families. The proposed amendments include allowing working parents to take up to 20 weeks (previously 6 weeks) of flexible unpaid parental leave within their 12-month entitlement period; enabling pregnant employees to utilise a portion of the 20-week flexible entitlement up to 6 weeks before their expected date of childbirth; removing restrictions that limit married or de facto employees from taking more than 8 weeks of unpaid parental leave concurrently; and ensuring that both parents can each take up to 12 months of unpaid parental leave, independent of the other parent’s leave. Furthermore, each parent would have the option to request an additional extension of up to 12 months without affecting the other parent’s available leave, potentially enabling a total of 24 months of unpaid parental leave for each parent.
The bill aims to simplify and expand the circumstances under which employees can authorize ongoing deductions from their wages, primarily for their benefit. Currently, the Fair Work Act does not permit varying deductions and requires a new written authorization for each change in the deduction amount. The proposed amendment would simplify and expand the circumstances under which employees can authorise ongoing deductions from their wages, primarily for their benefit. To address this administrative burden, the proposed amendment introduces a single authority for recurring deductions that may vary in amount over time, reducing the need for repeated authorizations. Employers and employees retain the option to offer and authorize variable deductions, with specified upper limits and prohibitions on deductions that directly or indirectly benefit employers.
Insertion of Entitlement to Superannuation in the National Employment Standards (‘NES’)
The bill proposes incorporating a superannuation entitlement within the National Employment Standards (NES). While employers already have an obligation to pay superannuation guarantee contributions, the amendment seeks to broaden the scope of employees with enforceable rights to superannuation by inserting the superannuation entitlement in the NES. This would allow the employees and unions to directly pursue employers for unpaid superannuation, complementing the broad regulatory powers of the Australian Taxation Office. Failure to fulfill required superannuation contributions could result in significant civil penalties for employers.
Enterprise Agreements and Workplace Determinations
The proposed bill aims to provide clarity on the interaction between enterprise agreements and workplace determinations. If a workplace determination is made that covers the same employment as a previously applicable enterprise agreement, the agreement ceases to apply to that employee’s employment and cannot be reinstated. This amendment confirms the common understanding of how workplace determinations interact with enterprise agreements and is a technical clarification.
Increased Protections for Migrant Workers
The proposed amendment provides that a breach of the Migration Act 1958 (Cth) or related instruments does not invalidate employment contracts or contracts for services. This amendment intends to ensure that migrants working in Australia have equal access to the protections provided by the Fair Work Act, regardless of their immigration status.
Long Service Leave in the Coal Mining Industry
The bill proposes specific amendments to the Coal Mining Industry (Long Service Leave Funding) Scheme to ensure that casual employees receive equal treatment to permanent employees regarding their entitlements. The proposed changes include applying a casual employee’s casual loading to levy payments made by the employer into the Coal Mining Industry (Long Service Leave) Fund and to the payment of long service leave entitlements to the employee; introducing updated methods for calculating the accrual of long service leave entitlements for casual employees; and requiring the Coal Mining Industry (Long Service Leave Funding) Corporation to publicly publish the levy return form, following consultation with the Secretary of the Department of Employment and Workplace Relations.
To know more about this proposed bill and how this could affect your workplace, contact BetterHR.