After extensive changes to the Fair Work Act 2009 (Fair Work Act) as part of the Secure Jobs, Better Pay amendments, the Federal Government has introduced the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Protecting Workers Entitlement Bill).
What are the key amendments?
The Protecting Workers Entitlement Bill has six key amendments:
- Increasing protections for migrant workers by ensuring contracts of employment or services will continue to be valid irrespective of immigration status.
- Changes to unpaid parental leave to align with the recent paid parental leave changes as well as an increase in flexibility in how unpaid parental leave can be taken and the amount of leave that can be taken flexibly.
- Creating a National Employment Standard entitlement to superannuation.
- Clarifying that enterprise agreements cease to apply when replaced by a workplace determination.
- Allowing regular employee authorised deductions for varying amounts to be authorised by a single authority rather than a new one for each deduction.
- Changes to coal mining long service leave so casuals are treated the same as permanent employees.
The House of Representatives has referred the Protecting Workers Entitlement Bill to the Senate Education and Employment Legislation Committee. The report is due 28 April 2023. We expect the Bill will pass through the Senate with little, if any, real opposition.
Increasing protections for migrant workers
The amendments address the interaction between the Fair Work Act and the Migration Act 1958 (Migration Act).
Migrant workers (including temporary migrant workers) working in Australia will be entitled to the benefit of the Fair Work Act regardless of their immigration status, including where there is a breach of the Migration Act or an instrument made under that act, such as a visa. For example, a migrant worker working in breach of their visa conditions would be entitled to benefits such as annual leave or notice of termination.
The changes will not impact whether a person has the right to work in Australia under the Migration Act, or any consequences of non-compliance with the Migration Act.
Changes to unpaid parental leave
The use of gendered language such as “he” and “she” and “maternity leave” will be replaced with gender-neutral terms such as “the employee” and “parental leave”.
A further five key changes are in store for unpaid parental leave provisions:
- Employees who are members of “employee couples” (that is, two employees covered by the Fair Work Act even though they may be employed by different employers) will be able to take unpaid parental leave at the same time. They will not be limited to an 8-week concurrent leave period as is the current entitlement.
- Employees will be able to commence unpaid parental leave at any time in the 24 months following the birth or placement of their child.
- Employees will be able to request an extension of their unpaid parental leave regardless of the amount of leave the other parent has taken. Presently, the parental couple is limited to a total of 24 months leave between them.
- The number of flexible unpaid parental leave days will be increased from 30 to 100 to align with changes to the government’s paid parental leave scheme.
- Pregnant employees will be able to access flexible unpaid parental leave in the 6 weeks prior to the expected date of birth.
These amendments will apply where the child’s date of birth, or day of placement, is on or after 1 July 2023.
The Protecting Workers Entitlement Bill introduces compulsory superannuation contributions to the National Employment Standards.
The proposed entitlement reflects the current obligation under superannuation legislation for employers to make minimum contributions to superannuation funds in order to avoid liability to pay a superannuation guarantee charge.
Inclusion of superannuation as a National Employment Standard entitlement will allow employees, unions, or the Fair Work Ombudsman to directly pursue employers for unpaid superannuation contributions. Consequential amendments will prevent multiple claims being commenced against an employer for the same superannuation shortfall (e.g., Australian Taxation Office under superannuation legislation).
The changes will ensure alignment between these National Employment Standard terms relating to superannuation and terms in Modern Awards.
The Protecting Workers Entitlement Bill clarifies that when a workplace determination comes into operation any earlier enterprise agreement will cease to apply.
This is consistent with the Fair Work Commission’s approach to this issue however it is not currently stated in the Fair Work Act. The amendments expressly clarify the position and remove any doubt as to this sequence of operation.
The Bill expands the circumstances in which employees can authorise deductions from wages where they are principally for the benefit of employees.
If ongoing deductions are made, for example for health insurance premiums or under salary sacrificing arrangements, an employee will not need to provide a new written authority to their employer if the amount of the deduction varies. A single authority will be agreed between the employee and employer for regular deductions.
This provides better protection for employees who potentially could lose the benefit that they receive from deductions. For example, where authorisations have not been proactively managed administratively by the employer by obtaining a new written agreement when the value of the deduction is varied, and a health premium is not paid for health insurance coverage.
A single authority cannot be used where the deduction indirectly or directly benefits the employer, even if the deduction principally benefits the employee.
Coal Mining Long Service Leave
The Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) and Coal Mining Industry (Long Service Leave) Payroll Levy 9 Collection Act 1992 (Cth) will be amended to ensure that casual employees are not treated less favourably than permanent employees in respect of their long service leave entitlements.
It is likely there will be more amendments to the Fair Work Act this year.
The Government is consulting on further reforms including:
- the characterisation of casual work
- providing the same pay and conditions for labour hire workers as directly engaged employees
- criminalising wage theft
- extending the powers of the Fair Work Commission to include “employee-like” forms of work
- giving workers the right to challenge unfair contractual terms
- allowing the Fair Work Commission to set minimum standards to ensure the road transport industry is safe, sustainable and viable
- providing stronger protections against discrimination, adverse action and harassment
- establishing a single national framework for labour hire regulation
- addressing the impact of the small business redundancy exemption in winding up scenarios to support equitable outcomes for claimants under the Fair Entitlements Guarantee
- further reforms to enterprise bargaining provisions; and
- limiting when demerger ballot applications can be made for registered organisation.
Consultation on these further changes closes in April, and we expect to see further amendments proposed around the middle of this year.
Kingston Reid will keep you updated as these changes unfold.