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:
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:
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:
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.
The following list provides the commencement dates for the various changes introduced by the PWE Act:
1 July 2023
30 December 2023
1 January 2024
1 January 2024, unless an earlier date is fixed by proclamation
The PWE Act will remove the current limitations on employee couples taking concurrent leave and extending their period of UPL. This will mean that:
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’.
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.
The proposed NES entitlement to superannuation does not apply to:
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.
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.
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 firstname.lastname@example.org.
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:
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.
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:
The PWE Act will introduce a clarification about the interaction between workplace determinations made by the FWC and existing enterprise agreements.