Employment Law
Key Reforms to Industrial Relations and Workers’ Entitlements in 2023
On 22 June 2023, Parliament passed the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 as a secondary series of recent industrial relations reforms introduced by the Federal Government.
This series of reforms to the Fair Work Act 2009 and related legislation alters a number of worker entitlements and administrative requirements for employers, including:
- Altering the scheme for unpaid parental leave;
- Introducing superannuation guarantee contributions under the NES;
- Expanding flexibility in amounts to employee-authorised deductions;
- Clarifying the effect of Workplace Determinations on prior Enterprise Agreements;
- Providing long service leave for casual coal mine workers; and
- Providing greater protections for migrant workers.
Unpaid Parental Leave
The Protecting Worker Entitlements Act provides greater access from 1 July 2023 to where both parents wish to take flexible unpaid parental leave, as well as increasing the period when they can do so, and the entitlement amounts. The changes were designed to match with entitlements to flexible unpaid parental leave to those contained in the Paid Parental Leave Act 2010. The changes:
- increase entitlement from 30 days of flexible unpaid parental leave to 100 days (20 weeks). These days are taken from the 12-month entitlement an employee has for taking unpaid parental leave;
- allow employees to commence that leave at any time in the 24 months following the birth of their child; and
- provide greater flexibility to pregnant employees by allowing them to take flexible unpaid parental leave in the six weeks prior to the anticipated birth date;
- allow employees to take their flexible unpaid parental leave before or after a period of continuous unpaid parental leave rather than forfeiting any remaining entitlement to take continuous unpaid leave.
- remove limitations on employee couples taking leave at the same time, which previously placed an 8-week limit on employee couples who wished to do so; and
- amends the language of the parental leave provisions within the Fair Work Act to a more gender-neutral terminology, e.g. ‘maternity leave’ is now ‘parental leave’.
Superannuation
The Protecting Worker Entitlements Act amends the National Employment Standards (NES) to specify that, from 1 January 2024, superannuation guarantee contributions paid by employers are also an entitlement under the NES. Prior to this amendment, this was otherwise determined by tax legislation rather than the Fair Work Act.
It also allows employees, unions or the Fair Work Ombudsman to collect / recover unpaid superannuation entitlements in addition to the Commissioner of Taxation. Similarly, it protects employers from being subjected to multiple proceedings in respect of attempting to recover the same unpaid superannuation under the Fair Work Act or tax legislation with the Commissioner of Taxation.
It also inserts a new provision into the Fair Work Act to clarify that an employer who has paid the superannuation guarantee charge under the Superannuation Guarantee (Administration) Act 1992 does not contravene the superannuation term of a Modern Award, which may require an employer to make contributions to a superannuation fund for the benefit of an employee.
Employee-Authorised Deductions
From 30 December 2023, The Protecting Workers Entitlements Act expands when an employee can authorise an employer to make valid deductions from their pay (e.g. union fees, a health fund, etc) provided the deduction is primarily for the employee’s benefit. Previously, each deduction (if varied at all) could not be made without a fresh written authorisation. The effect of the change allows an employee’s written authorisation to specify that the amount can be varied from time to time without further written authorisation.
Workplace Determinations and Enterprise Agreements
As of 1 July 2023, the new reforms clarify that under the Fair Work Act, when a workplace determination comes into effect, it displaces an earlier enterprise agreement.
Long Service Leave (Casual Coal Miners)
The Protecting Worker Entitlements Act introduces specific measures for casual workers who are employed the black coal mining industry which is governed by the Coal Mining Industry Long Service Leave Scheme. These reforms simply ensure that casual coal mine workers are treated no less favourably than permanent employees insofar as accrual and access to long service leave entitlements. This is to take effect on 1 January 2024 or earlier, if fixed by Proclamation.
Migrant Workers
The Protecting Worker Entitlements Act was aimed to ensure that worker entitlements would still be protected under the Fair Work Act irrespective of their immigration status. However, the new reforms ensure that a migrant worker, even temporary, will be entitled from 1 July 2023 to enjoy the same protections and entitlements of the Fair Work Act. This includes situations where the migrant worker may have committed a breach of the Migration Act 1958 or an associated industrial instrument, which previously would have voided the employment contract, removing any of the rights and entitlements set out in the Fair Work Act.
In summary, key dates that employers should take into consideration going forward are:
1 July 2023: Changes to the rights of migrant workers, flexibility with unpaid parental leave, workplace determinations and their relationship with prior enterprise agreements.
30 December 2023: Changes to authorising employee authorised deductions.
1 January 2024: Changes to superannuation guarantee contributions.
1 January 2024 (or an earlier date fixed by Proclamation): The addition of long service leave for casual coal mine workers.
For more information and expert advice to ensure that your business or your employee is fully complying with any reforms, ask to speak to a lawyer at Ezra Legal on (08) 8231 6100 or email reception@ezralegal.com.au
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Ash Ibrahim
Solicitor
Ezra Legal
