The second round of workplace and industrial relations reforms under the Albanese government have passed
Background
The Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Cth) (the Entitlements Act), which is the second phase of workplace relations reforms under the Albanese government, has now received Royal Assent. The Entitlements Act, effective from 1st July 2023, introduces amendments to the Fair Work Act 2009 (Cth) (FW Act) and related legislation, with the primary objectives of safeguarding worker entitlements, addressing general inequality and removing unnecessary administrative burdens.
Unpaid Parental Leave
Significantly, the Entitlements Act expands upon the existing provisions for unpaid parental leave outlined in the FW Act, giving employees greater flexibility in how they use their unpaid parental leave.
The amendments include:
Employees being entitled to up to 100 days of flexible unpaid parental leave, which can be taken a singular day at a time if an employee wishes. This has been increased from 30 days and is in addition to the entitlement to the 12 months of unpaid parental leave as a single continuous period.
Employees having the option to commence unpaid parental leave at any time within 24 months after the birth or placement of a child.
Employees being able to access flexible unpaid parental leave before the birth of a child, as well as after a period of the single continuous unpaid parental leave.
Employees being able to take up to 12 months of unpaid parental leave and request an additional 12 months, regardless of the other parent's leave duration.
The removal of the concept of ‘concurrent leave’, allowing employees to take unpaid parental leave at the same time without limitation.
The Entitlements Act also replaces gendered language such as "he" "she" and "maternity leave" with gender-neutral terms like "the employee" and "parental leave." This change ensures that any parent can have equal access to the unpaid parental leave provisions. These amendments will be effective from 1st July 2023.
Superannuation
In another significant reform, the Entitlements Act introduces a superannuation entitlement in the National Employment Standards (NES). Previously, while employers were obligated to pay a superannuation guarantee charge for failing to contribute to an employee's superannuation fund, employees did not have a specific right to be paid superannuation under the FW Act.
Now, the failure to make superannuation contributions will be considered a breach of the FW Act. Employees, unions, and the Fair Work Ombudsman will have the ability to initiate proceedings to recover unpaid superannuation contributions. Applicants can seek recovery of outstanding contributions and other orders, including compensation.
The inclusion of the superannuation entitlement in the NES aims to provide employees with a means to recover their superannuation that complements the Australian Taxation Office's (ATO) existing role. Essentially, employees will now have two avenues to recover a superannuation shortfall. These changes will come into effect on 1st January 2024.
Employee Authorised Deductions
Section 324 of the FW Act currently permits employers to deduct amounts from an employee's pay, provided that the deduction is authorised in writing by the employee, primarily for their benefit, and for the specified amount stated in the authorisation. The Entitlements Act here expands on these provisions by enabling employees to authorise employers, in writing, to make regular deductions for amounts that vary from time to time provided that the deductions are not for the direct or indirect benefit of the employer.
This update is anticipated to reduce administrative burdens by eliminating the need for employees to provide a new written authorisation on every occasion. The effective date for these changes is 30th December 2023.
Workplace Determinations
The Entitlements Act also clarifies that an enterprise agreement ceases to apply once it is replaced by a workplace determination following a mechanism such as arbitration. This was not expressly stated in the FW Act and this change has been included to remove any doubt. This change will be effective from 1st July 2023.
Increased Protections for Migrant Workers
The Entitlements Act clarifies that a violation of the Migration Act 1958 (Cth) or any relevant instrument made under it does not invalidate an employment contract or contract for services under the FW Act. Consequently, migrant workers, including temporary migrants, will be entitled to the protections provided by the FW Act, regardless of their migration status.
These changes apply even in cases where a migrant worker has breached a visa condition, lacks work rights, or does not possess the right to be in Australia. The effective date for these changes is 1st July 2023.
Coal Mining Long Service Leave
Finally, the Entitlements Act introduces technical amendments to the Coal Mining long service leave scheme to ensure that casual employees receive no less favourable treatment than permanent employees regarding accruing and accessing long service leave entitlements.
The effective date for these changes will be either a date specified through a proclamation or 1st January 2024, whichever comes earlier.
Key Takeaways
With some of these new legislative changes already in operation and more coming into effect soon, employers should undertake a review of their policies, procedures, payroll practices, and employment agreements to ensure they will be aligned with the new legislation.
If you require assistance or advice regarding compliance, or the implementation of these new changes, please contact:
Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal
Sonia McCabe
Senior Associate
T 03 5226 8558
E smccabe@ha.legal
Matthew Synoradzki
Lawyer
T 03 5226 8542
E msynoradzki@ha.legal
