Since the end of 2022, there have been a number of changes to Fair Work laws and further changes continue throughout 2023. These are having a significant impact on employees and employers in the national workplace relations system. Therefore it is important to be familiar with the latest laws and when relevant, up-date workplace policies. This article explains the latest changes.
On 12 May 2023, Master Builders SA held an “Industry Update” Seminar which included legislative changes that had occurred during the first half of 2023. These included changes to sexual harassment laws, pay secrecy, anti-discrimination and protected attributes, “zombie agreements” enterprise bargaining agreements and other changes.
On 30 June 2023, the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 came into force.
In short, this new Act:
- Protects migrant workers by the Fair Work 2009 Act (Cth), even if they may be non-compliant in terms of immigration law or visa conditions;
- Increases access to unpaid parental leave to align with recent changes to the Paid Parental Leave Act 2010;
- Creates an entitlement to superannuation in the National Employment Standards (‘NES’);
- Clarifies the operation of workplace determinations made by the Fair Work Commission and their interaction with enterprise agreements; and
- Expands the circumstances in which employees can authorise employers to make deductions from payments due to employees, where the deductions are principally for the employee’s benefit.
Re: 1 Protection for Migrant Workers (effective 1 July 2023)
The Act clarifies that:
- A breach of the Migration Act 1958 (Cth) or any instrument made under that legislation, does not affect the validity of a contract of employment or contract for services.
- The intention of this amendment is to ensure that migrants working in Australia have access to the protections in the Fair Work Act 2009 (Cth) regardless of their immigration status.
- A migrant worker who has contravened their visa will still be entitled to benefits under the Fair Work Act 2009 (Cth), including annual leave and notice of termination. For example, a migrant worker is still entitled to be paid for all the hours they have worked, even if these hours exceed the maximum total they are lawfully entitled to work under their visa conditions.
Re: 2 Increased Access to Unpaid Parental Leave (effective 1 July 2023)
The Act expands access to unpaid parental leave to assist families sharing work and caring responsibilities by:
- Allowing working parents to take up to 20 weeks (previously 6 weeks) of their 12-month unpaid parental leave entitlement flexibly;
- Enabling pregnant employees to access some of the 20-week flexible entitlement up to 6 weeks before the expected date of birth of their child;
- Removing restrictions that prevent employees who are married or in a de facto relationship from taking more than 8 weeks of unpaid parental leave at the same time;
- Ensuring both parents can take up to 12 months’ unpaid parental leave, regardless of the amount of leave the other parent takes.
- Allowing both parents to request an extension of up to 12 months of unpaid parental leave, without impacting the amount of leave available to the other parent. This means each parent may be able to take up to 24 months of unpaid parental leave.
- Requiring employees to give notice ten weeks (or as soon as practicable) before commencing UPL. Notice should include the start and end dates of their UPL and the total number of flexible UPL days they intend to take.
Re: 3 Entitlement to Superannuation under the National Employment Standards (1 January 2024)
Although employers already have an obligation to pay the superannuation guarantee under Superannuation Guarantee laws, the law has changed so that it is now also part of the National Employment Standards. These changes:
- Complement (but do not replace) the Australian Taxation Office’s broad regulatory powers to recover superannuation guarantee charge amounts where there is a superannuation guarantee shortfall;
- Broaden the scope of employees who have an enforceable right to superannuation contributions; and
- Permit employees and unions to directly pursue employers for unpaid superannuation.
NOTE: Employers could be subject to significant civil penalties under the Fair Work Act 2009 for failing to make required superannuation contributions. These changes also mean that employers who have relied on a ruling from the ATO in relation to their superannuation obligations, may no longer be protected from being penalised if that ATO ruling turns out to be incorrect.
Re: 4 Clarifying Fair Work Commission Workplace Determinations and Enterprise Agreements (effective 1 July 2023)
The changes under the Act:
- Clarify what happens to an enterprise agreement that is replaced by a workplace determination.
- Provide that, if a workplace determination is made that covers an employee in relation to the same employment that an enterprise agreement has previously covered, the latter ceases to apply to that employee in relation to their employment and cannot be applied again; and
- Confirm the common understanding of how workplace determinations interact with enterprise agreements.
Re: 5 Authorise Wage Deductions (effective 30 December 2023)
Under the current Fair Work rules, employees can ask employers to make deductions from their wages if those deductions are principally for their benefit. However, if the amount to be deducted changes, the employee must give their employer a new written authorisations every time to authorise that change.
The Act now will:
- Expand the circumstances in which employees can authorise ongoing deductions from their wages which are principally for their benefit;
- Enable just a single authority for agreements between the employee and employer for deductions that are recurring and may vary in amount from time to time;
- Prohibit varying deductions which directly or indirectly benefit employers; and
- Allow authorisations by employees (without them needing to be in writing) to include any other monetary allowance, loading or identifiable amount (including union membership fees).
For further information contact Holly Gardner, Director – Legal Services