As per our earlier post, below is an update on the Fair Work Act 2009 amendments.
Some changes have already come into effect, while others become effective later this year or next year.
Changes to Unpaid Parental Leave
From 1 July 2023, the Fair Work Act includes greater flexibility for employees taking unpaid parental leave. This change aligns with the updates made to the Paid Parental Leave scheme, which also became effective from 1 July 2023.
All employees in Australia are now eligible for unpaid parental leave if they have completed at least 12 months of continuous service with their employer.
This includes casual employees if they have:
- been working for their employer on a regular and systematic basis for at least 12 months;
- a reasonable expectation of continuing work for their employer on a regular and systematic basis, had it not been for the birth (or expected birth) or adoption (or expected adoption) of a child.
The former Dad and Partner Pay entitlement has been removed. The additional 2 weeks’ pay has been combined with the existing entitlement to 18 weeks Parental Leave Pay. Partnered couples can claim up to 20 weeks’ paid parental leave between them. Parents, who are single at the time of their claim, can access the full 20 weeks.
These changes affect employees whose baby is born or placed in their care on or after 1 July 2023.
Increased Protections for Migrant Workers
From 1 July 2023, the Fair Work Act has been amended to state that migrant and temporary migrant workers will remain entitled to their wages and employment rights under the workplace laws regardless of their migration status.
This includes, but is not limited to, circumstances where:
- a migrant worker has breached a work-related visa condition,
- a migrant worker does not have work rights, or
- a migrant worker does not have the right to be in Australia.
The operation of any sanctions under the Migration Act, for breaches of immigration law, remain unaffected by this amendment.
From 30 December 2023, employees will be able to authorise their employers to make recurring or regular deductions from their salary for amounts that vary, provided the authorisation is in writing and the deductions are principally for the benefit of the employee (and not the employer).
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. It can be withdrawn by the employee in writing at any time.
Insertion of Entitlement to Superannuation in the National Employment Standards (‘NES’)
From 1 January 2024, the National Employment Standards (NES) will include an express right to superannuation contributions. Employers continue to have an obligation to pay superannuation contributions under the applicable superannuation laws, with the ATO having the primary responsibility for ensuring that employers discharge that obligation. That will not change. However, including superannuation as a right under the NES will allow employees, unions and the Fair Work Ombudsman (FWO) to bring their own proceedings to recover unpaid superannuation contributions as well as associated penalties as a breach of the NES.
Enterprise Agreements and Workplace Determinations
From 6 June 2023, there are changes to:
- Making agreements including changes to the better off overall test (BOOT) and the introduction of a new statement of principles that the Fair Work Commission (the Commission) must take into account when determining whether an enterprise agreement has been genuinely agreed to by employees.
- Multi-enterprise agreements. There are now 3 types of multi-enterprise agreements:
o Single interest employer agreements for 2 or more employers who are certain franchisees or have common interests and who want to jointly bargain for a single agreement.
o Supported bargaining agreements which replace the current low-paid bargaining arrangements.
o Co-operative workplace agreements for employers who have agreed to bargain together in some circumstances.
- Requirements that must be met before a vote on a new or variation to a multi-enterprise agreement.
Please note: Single enterprise agreements are currently the most used type of enterprise agreements. The only change to these agreements as part of these amendments are changes to the BOOT.
There are also changes to:
- bargaining disputes
- industrial action (protected action ballots).
These changes affect all employers and employees covered by an enterprise agreement or looking to start bargaining,
Long Service Leave in the Coal Mining Industry
From 30 June 2023, The Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 took effect and amends the:
- Coal Mining Industry (Long Service Leave) Administration Act 1992
- Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992.
Under the amendments, a casual employee’s casual loading will be applied to the levy paid by employers, and also to the payment of employees’ long service leave entitlements.
As a result of these changes, employer reporting requirements to Coal LSL will change.
A new Levy Advice form will be in force from 1 January 2024, the date on which these amendments will take effect. Calculation methods for the accrual, payment and reporting of a casual employee’s long service leave entitlements will change.
Reporting periods will not change.
Coal LSL is already communicating with employers about what these changes mean, and will provide employers with guidance and support in the lead-up to them taking effect.
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