Fair Work Update for Employers

Posted by November 22, 2023 | Articles | No Comments

This blog highlights recent and upcoming changes to the Fair Work Act 2009 (Cth) (FW Act) that are likely to affect your employee relations.

On 22 June 2023, the Australian Government passed the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Cth) introducing:

  1. changes to unpaid parental leave;
  2. increased protections for migrant workers;
  3. authorised employee deductions;
  4. insertion of the entitlement to superannuation in the National Employment Standards;
  5. changes to requirements for Enterprise Agreements and Workplace Determinations; and
  6. changes to long service leave legislation in the coal mining industry.

Please find below a little bit of detail on the changes and our recommendations to manage them.

  1. Changes to unpaid parental leave

 What has changed?

From 1 July 2023, the FW Act includes greater flexibility for employees taking unpaid parental leave in line with the updates made to the Paid Parental Leave scheme.

All employees in Australia are now eligible for unpaid parental leave if they have completed at least 12 months of continuous service with their employer.

This includes casual employees if:

  • they have been working for their employer on a regular and systematic basis for at least 12 months; and
  • have a reasonable expectation of continuing work for their employer on a regular and systematic basis, had it not been for the birth (or expected birth) or adoption (or expected adoption) of a child.

Employees taking unpaid parental leave will be able to take up to 100 days of their 12 month leave entitlement flexibly during the 24 month period after the birth or placement of their child. This is an increase from the previous 30-day entitlement.

Pregnant employees will also be able to access their flexible unpaid parental leave for up to 6 weeks before the expected date of birth of their child.

Employees will no longer be prevented from taking more than 8 weeks of unpaid parental leave at the same time as their spouse or de facto partner (known as concurrent leave).

Both parents will be able to take up to 12 months unpaid parental leave at any time within 24 months of their child’s birth or placement. They can also both apply for an extension of up to 12 months beyond the initial 12 month leave amount.

These changes affect employees whose baby is born or placed in their care on or after 1 July 2023.

  1. Increased protections for migrant workers

 What has changed?

Migrant workers in Australia have always had the same rights and entitlements under workplace laws as other employees working in Australia.

This change clarifies that:

  • migrant workers continue to have these rights and entitlements regardless of their migration status under the Migration Act 1958 (Cth) (Migration Act);
  • a breach of that Migration Act doesn’t affect the validity of an employment contract or a contract for services.

This includes in circumstances where a migrant worker:

  • has breached a condition of their visa;
  • doesn’t have work rights; and/or
  • doesn’t have the right to be in Australia.
  1. Authorised employee deductions

 What has changed?

At present, a new written authorisation between an employee and employer has to be made if a deduction amount changes.

From 30 December 2023, employees will be able to authorise salary deductions made by their employer that are:

  • recurring; and
  • for amounts that vary from time to time.

This means an employee can provide a single written authorisation that allows their employer to deduct amounts from their salary even where the deduction amount may vary from year to year. This authorisation can be withdrawn by the employee in writing at any time. In the past, the requirement was for the employee to give written authorization for each specific deduction.

Employees can still continue to allow deductions for specific amounts only; and it continues to be a requirement that any deduction made by an employer must be principally for the employee’s benefit and authorised in writing.

  1. Insertion of the entitlement to superannuation in the National Employment Standards

What has changed?

From 1 January 2024, the National Employment Standards (NES) will include a right to superannuation contributions. This means that unpaid or underpaid superannuation can be enforced under the FW Act by employees, whereas previously it was a matter for the Australian Taxation Office (ATO) to pursue.

Employers already have an obligation to pay superannuation contributions for eligible employees under superannuation guarantee laws. There would be no contravention of the NES provision where an employer has met their obligations under these laws.

The ATO will continue to have the main responsibility for ensuring compliance with employer obligations under superannuation guarantee laws.

The Fair Work Ombudsman can make referrals involving unpaid superannuation to the ATO.

  1. Changes to requirements for Enterprise Agreements and Workplace Determinations

 What has changed?

From 6 June 2023, there are changes to:

  • Making agreements including changes to the better off overall test (BOOT) and the introduction of a new statement of principles that the Fair Work Commission (FWC) must take into account when determining whether an enterprise agreement has been genuinely agreed to by employees.
  • Multi-enterprise agreements. There are now 3 types of multi-enterprise agreements:
    • Single interest employer agreements for 2 or more employers who are certain franchisees or have common interests and who want to jointly bargain for a single agreement.
    • Supported bargaining agreements which replace the current low-paid bargaining arrangements.
    • Co-operative workplace agreements for employers who have agreed to bargain together in some circumstances.
  • Requirements that must be met before a vote on a new or variation to a multi-enterprise agreement.
  1. Changes to long service leave legislation in the coal mining industry

 What has changed?

 Employees in the black coal mining industry are entitled to portable long service leave entitlements that go with them between employers. This is managed by the Coal Mining Industry (Long Service Leave Funding) Corporation.

There are changes to:

  • clarify that the amount paid out as part of an employee’s long service leave entitlement must include casual loading (where it applies); and
  • the method for the accrual of long service leave for casual employees.

Under the amendments, a casual employee’s casual loading will be applied to the levy paid by employers, and also to the payment of employees’ long service leave entitlements.

As a result of these changes, employer reporting requirements to Coal LSL will change.

A new Levy Advice form will be in force from 1 January 2024, the date on which these amendments will take effect. Calculation methods for the accrual, payment and reporting of a casual employee’s long service leave entitlements will change.

Reporting periods will not change.

Please don’t hesitate to contact MDC Legal on (08) 9288 4000 or via [email protected] for assistance or additional information in relation to these changes or any Employment Law issue, and please look out for our upcoming post on positive duty to prevent sexual harassment and the AHRC’s compliance powers.