Protecting Worker Entitlements Bill passes: further changes for employers
On 22 June 2023, the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Bill) passed both Houses of Parliament.
The Bill is anticipated to receive Royal Assent relatively swiftly and will result in a few notable changes to employee rights under the Fair Work Act 2009 (Cth) (FW Act).
Unpaid Parental Leave
The Bill makes several changes to unpaid parental leave, with the aim of strengthening access to this leave, promoting shared caring responsibilities in two-parent families and aligning the provisions of the FW Act with recent changes to the Paid Parental Leave Act 2010 (Cth) by:
- allowing employees to commence unpaid parental leave at any time in the 24 months following the birth or placement of a child;
- allowing parents to request an extension to their period of unpaid leave up to a total of 24 months each, regardless of the amount of leave the other parent has taken;
- removing provisions relating to employee couples, so they can take unpaid parental leave at the same time (previously limited to 8 weeks);
- increasing flexible unpaid parental leave from 30 days to 100 days, with flexible unpaid parental leave able to be claimed in multiple blocks of one or more days; and
- allowing pregnant employees access to flexible unpaid parental leave in the six weeks prior to the expected birth of their child.
The Bill provides that the entitlement to superannuation contributions will become the twelfth National Employment Standard.
As a result, employers will be expressly required under the FW Act to make contributions to a superannuation fund for the benefit of each employee to avoid liability to pay the superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 (Cth) (SGC Act).
Importantly, this provides employees with an alternative avenue for recourse against employers who do not make superannuation contributions. Contraventions of the NES are civil penalty provisions and can expose employers to orders to pay compensation. This is likely to be a more straightforward claim for employees, as opposed to under the SGC Act.
There are also several further amendments to the Fair Work Act which will be introduced by the Bill.
Strengthening migrant rights: migrant workers (including temporary migrant workers) will be entitled to the benefits and protections of the FW Act regardless of their immigration status any irrespective of any breach by them of the Migration Act 1958 (Cth).
Workplace determinations: clarification that enterprise agreements will cease to apply when they are replaced by a workplace determination, which was introduced by the recent changes to the FW Act from the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth).
Authorised deductions: permitting regular deductions from an employee’s salary without requiring written authorisation each time the amount varies (e.g. for deducting an employee’s health fund premium where that premium may have increased), provided the deductions are not for the direct or indirect benefit of the employer. This does not change the general restriction on employers making deductions unless the employee has authorised the deduction in writing and the deduction is principally for the employee’s benefit.
Finally, the Bill introduces minor amendments to the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) to seek to ensure that casual employees within the coal mining industry accrue long service leave at a rate that better reflects the hours they have worked.
Employers need to be aware of these forthcoming changes to the FW Act and take steps to consider whether any policies and procedures or payroll processes need to be updated to address the above changes.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.