Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023

On 22 June 2023, the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Cth) (PWE Act) passed through Parliament and received royal assent on Friday 30 June 2023.

Ai Group was actively engaged in confidential consultations with the Department of Employment and Workplace Relations regarding the development of the PWE Act. We also lodged the following submission to a Senate inquiry into the proposed legislation:

• Inquiry into the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Cth)

To assist Members, Ai Group has created a guide which provides an overview of the changes introduced by the PWE Act. At a high-level the PWE Act will result in legislative amendments, including to the Fair Work Act 2009 (Cth) (FW Act), regarding the matters below:

• Unpaid parental leave
• Superannuation as a right within the National Employment Standards
• Payroll deductions for authorised purposes
• Long service leave entitlements for casual employees in the black coal mining industry.
• Clarification of migrant workers’ rights under the FW Act
• Clarification that when a workplace determination takes effect.

Available resources for Members Ai Group Members can refer to the following exclusive resources to help them navigate the significant changes introduced by the PWE Act: Unlimited calls to the Ai Group Workplace Advice Line (1300 55 66 77) - our national telephone advisory service where our experts answer any workplace related question A Guide to the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 The following resources to help Members navigate changes to unpaid parental leave: Quick Facts about Flexible Unpaid Parental Leave (FUPL) Timeline for Employees Eligible for Unpaid Parental Leave and Flexible Unpaid Parental Leave The following Member Advices: NAT 025/23: Protecting Worker Entitlements Act NAT 024/23: Protecting Worker Entitlements Act Ai Group and Ai Group Workplace Lawyers can provide detailed advice and representation regarding the PWE Act and any workplace issue business may have. Members who wish to discuss the Government’s reform agenda more broadly, should contact Brent Ferguson, Ai Group’s Head of National Workplace Relations Policy.

PWE Act - Operative dates of major changes

The following list provides the commencement dates for the various changes introduced by the PWE Act:

• 1 July 2023

  • Changes to unpaid parental leave
  • Clarification that the FW Act applies to migrant workers
  • Clarification that when a workplace determination takes effect when the applicable enterprise agreement no longer operates
  • Technical corrections to the FW Act

• 30 December 2023

  • Changes to payroll deductions for authorised purposes, including for union fees

• 1 January 2024

  • Introducing a right to superannuation within the National Employment Standards

• 1 January 2024, unless an earlier date is fixed by proclamation

  • Providing casual workers in the black coal mining industry with access to long service leave entitlements.

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Unpaid parental leave

What do the new laws do?

Changes to flexible UPL

• Increase the number of days that can be taken as flexible UPL from 30 to 100 days, unless a higher number of days is provided by the regulations.
• Allow pregnant employees to take flexible UPL 6 weeks before the expected birth of the child.
• Allow employees to commence flexible UPL before or after a period of continuous UPL.

UPL for employee couples

The PWE Act will remove the current limitations on employee couples taking concurrent leave and extending their period of UPL. This will mean that:

• Employees can take up to 12 months of UPL and request a further 12 months of UPL, regardless of how much leave their spouse or de factor partner takes, up to a total of 24 months each.
• All employees will be able to take UPL at any time during the 24-month period starting on the date of birth of the child.
• The current limit on employees taking no more than 8 weeks of concurrent leave will cease to apply, and an employee can take any amount of their leave at the same time as their partner.

Implementing gender neutral language

References to gendered language such as ‘he’, ‘she’ and ‘maternity leave will be replaced with gender-neutral terms such as ‘the employee’ and ‘parental leave’. 

How with this impact business

Theses changes will increase the number of employees who are entitled to take UPL, and extensions to that leave, and will therefore lead to more requests for UPL. 

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Superannuation as a right within the National Employment Standards

What do the new laws do?

• Introduce a new National Employment Standards (NES) entitlement, for the payment of superannuation, which seeks to extend an enforceable right for all NES-covered employees (not just those covered by an award) to recover unpaid superannuation.
• Unions and the Fair Work Ombudsman (FWO) will also be able to commence proceedings to recover superannuation amounts on behalf of an employee. However, they will generally not be able to do so if the ATO has already commenced proceedings. Currently, only employees award or enterprise agreement covered employees which provides for superannuation contributions can bring initiate proceedings. 
• The PWE Act does not prevent a claim from being made in circumstances where the ATO has used other enforcement activity other than court proceedings, or discontinued its own court proceedings if no final order for recovery was obtained.

The proposed NES entitlement to superannuation does not apply to:

• the recovery of superannuation contributions above the minimum superannuation contribution amount (currently 10.5%);
• national system employers and employees who are only national system employers and employees due to a State’s referral of power to the Commonwealth; and
• deemed employees under superannuation legislation (e.g. certain types of contractors).

How with this impact business

Employers will now be at risk of employess and unions pursuing claims for unpaid super entitlements independant of the ATO.  As a consequence, it means that businesses will be able to place far less reliance on guidance from the ATO on the application of complex superannuation laws.

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Payroll deductions for authorised purposes

What do the new laws do?

There are various types of permitted deductions that may be made from an employee’s pay under section 324 of the FW Act, where the deduction is: authorised in writing by the employee, is principally for their benefit, and is the same amount as specified in the authorisation. The authorisation can be withdrawn in writing by the employee at any time.

The proposed new laws allow an employee to agree in a written authorisation for multiple or ongoing deductions (rather than making an agreement on each occasion) to be made from their pay. Where an employee authorises multiple or ongoing deductions, the deduction may be authorised for a specified amount or amounts, or for amounts as varied from time to time. This means that an employee can pre-emptively authorise the amount of deduction to be increased over time. 

How will this impact business

The PWE Act also contains transitional and saving arrangements for authorisations which are made before these provisions commence. 

If the proposed provisions are passed and you require advice on how these proposed provisions may impact existing authorisations, please contact the Ai Group Workplace Advice Line on 1300 55 66 77 or email Ai Group Workplace Lawyers at info@aigroupworkplacelawyers.com.au.

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LSL entitlements for casual employees in the black coal mining industry

What do the new laws do?

The PWE Act makes a number of changes to the Coal Mining Long Service Leave Scheme (Coal LSL Scheme) which seek to ensure that casual employees are treated no less favourably than permanent employees with regard to the accrual and access of LSL entitlements. It seeks to do so by: 

• Including casual loading in the calculation of:
  • the levy payments made by an employer into the Coal Mining Industry (Long Service Leave) Fund (Coal LSL Levy);
  • and a casual employee’s LSL entitlement.
• Introducing two new methods of calculating a casual employee’s average working hours per week over a quarter (period of 13 weeks) for the purposes of determining their LSL accrual rate, including in circumstances where the casual employee does not perform any work in a certain week (e.g. a week falling between two working weeks).
• Introducing new requirements for Coal Mining Industry (LSL Funding) Corporation (Coal LSL) to approve a Coal LSL Levy return form to be published on the Federal Register of Legislation.

For examples of the two new methods used for calculating a casual employee's LSL please see page 10 of our Guide to the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023.

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Clarification of migrant workers’ rights under the FW Act

What do the new laws do?

The changes make clear that a migrant worker working in Australia is entitled to the benefit of the FW Act, regardless of their migration status.

The changes also seek to make clear that the following scenarios would not affect the validity of an individual’s contract of employment or contract for services for the purposes of the FW Act, namely:

• Where an individual does not have a right to work in Australia for the purposes of the Migration Act 1958 (Migration Act).
• Where an individual has contravened the Migration Act or breached a condition of their visa.
• Where an individual is no longer entitled to remain in Australia in accordance with their visa.

 

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Clarification that when a workplace determination takes effect the applicable enterprise agreement no longer operates

What do the new laws do?

The PWE Act will introduce a clarification about the interaction between workplace determinations made by the FWC and existing enterprise agreements.

 

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