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Fresh Changes to the Fair Work Act: Protecting Worker Entitlements Bill 2023

In the latest round of employment law updates, we’ve seen the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 pass on 22 June 2023, which means more changes that employers need to stay on top of.

July 13, 2023

In the latest round of employment law updates, we’ve seen the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 pass on 22 June 2023, which means more changes that employers need to stay on top of.

To access the Amendment Bill, click here.

These changes include:

Right to superannuation in the National Employment Standards

  • Effective from 1 January 2024.

Why is this “new”? Currently the ATO can receive and deal with unpaid superannuation complaints, however, including a safety net and workplace minimum right to paid superannuation adds a layer of risk for any employer who doesn’t handle superannuation obligations well.

We can likely assume unpaid superannuation will be akin to wage theft once it becomes a protected minimum safety net condition.

Changes to unpaid parental leave

  • Effective from 1 July 2023.

Employees will have options to take up to 100 days of their 12-month leave period flexibly within 24 months after the birth or placement of their child. This is an increase from the previous 30-day entitlement.

Pregnant employees will have options to access flexible unpaid parental leave up to six weeks before the expected date of birth.

Both parents can take up to 12 months of unpaid parental leave within 24 months of their child’s birth or placement, with the option to apply for an extension of up to a further 12 months.

Interaction between enterprise agreements and workplace determinations

  • Effective from 1 July 2023.

The Fair Work Commission has powers now, to make a workplace determination that replaces an enterprise agreement in certain circumstances, thereby setting new terms and conditions of employment for affected employees.

Authorised employee deductions:

  • Effective from 30 December 2023.

This is a big one! Employers will be able to have employees authorise recurring salary deductions for varying amounts through a single written authorisation. While the employee will be able to withdraw this authorisation in writing at any time, this is still a big change in the favour of employers.

Previously, a new written authorisation was required for any changes in deduction amounts.

Employees can also continue to allow deductions for specific amounts, provided they are primarily for the employee’s benefit and made in writing.

Protections for migrant workers:

  • Effective from 1 July 2023.

Migrant workers in Australia are granted the same workplace rights and entitlements as other employees, regardless of their migration status under the Migration Act 1958 (Cth) (“Migration Act”). Breaches of the Migration Act (for example, where an employee breaches their visa) do not affect the validity of employment contracts or contracts for services.

This is one to take note of, and to explore further – many employers have terms in employment contracts that rely on an employee’s valid Visa status, and breaching these terms brings about an immediate termination of employment. This is likely going to change the lawfulness of those terms and decisions.

Casual employees in the Black Coal Mining Industry:

  • Changes effective either on a day fixed by Proclamation or 1 January 2024 (whichever comes first).

The changes are aimed to ensure that casual employees are treated no less favourably than permanent employees for portable long service leave entitlements managed by the Coal Mining Industry (Long Service Leave Funding) Corporation.

The changes include clarification that long service leave payouts for casual employees must include any applicable casual loading and the implementation of a new method for accruing long service leave for casual employees.

 

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