In addition to last year’s Secure Jobs, Better Pay legislation, the Parliament of Australia has recently passed the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 which makes further changes to the employment law landscape in five key areas.

Some of the changes were brought in almost immediately and so are already in effect, others will be introduced over the forthcoming months. 

In this article we discuss the changes contained within the legislation, what they mean for employers and when they take effect.

1. Unpaid parental leave

Sweeping changes were made to the entitlement to unpaid parental leave and are already law as of 1 July 2023, including: 

  • the ability for both parents to take up to 24 months of unpaid parental leave, regardless of how much leave the other parent has taken; and 
  • an increase in flexible parental leave days from 30 to 100 days. You can read all about these changes in our earlier article here.

When did these changes take effect: 1 July 2023

What do they mean for employers: If you have any employees taking parental leave it will be important to understand their increased entitlements going forward. Leave policies should be updated to reflect the changes.

​2. Migrant Workers

Another change that has already come into effect is to clarify that migrant workers are still entitled to protections under the Fair Work Act 2009 even if they have breached their visa conditions or lost rights to work in this country.

This means that such employees are still entitled to protections like minimum wages, minimum notice periods when their employment is terminated, to be paid out accrued annual leave when their employment ends and can still make claims for unfair dismissal even when they have lost their rights to work in Australia (or did not have any rights to work in the first place).

When did these changes take effect: 1 July 2023

What do they mean for employers: Particular care will need to be taken when dealing with employees who lose their work rights or breach their visa conditions, as such employees will still have rights to challenge a termination of employment (noting that even when there is a valid reason for termination, a finding of unfair dismissal may still arise where a proper process has not been followed to effect the dismissal). Professional advice should be sought when dealing with such a situation.

3. Deductions from employees’ pay

The Fair Work Act currently incudes some very strict rules about when an employer is allowed to deduct any sums from an employee’s pay. 

One of the grounds on which this is currently allowed is where: 

  • the deduction is principally for the employee’s benefit; and 
  • the employee has authorised the deduction in writing, which must specify the exact amount that the employee authorises to be deducted.

The effect of the current wording of the legislation is that it is not possible for the employee to authorise an ongoing deduction where the amount of the deduction is not fixed or will vary; this would require a new written authority whenever the amount of deduction changes.

The new changes will allow an employee to authorise an ongoing deduction where the amount of deduction varies, eg where the price of a service or product changes periodically or over time. This should reduce admin and bureaucracy for both employers and employees.

To protect employees from potentially being coerced into doing something against their will, an authorisation for varying deductions will not be allowed where the deduction directly or indirectly benefits the employer or a party related to the employer, subject to very limited exceptions. 

When do these changes take effect: 30 December 2023

What do they mean for employers: Employers will have to deal with reduced admin when dealing with authoristaions for ongoing and variable deductions from employees’ pay.

4. Superannuation to be included in the National Employment Standards (NES)

All employers are already required to pay minimum superannuation contributions on behalf of employees, and nothing is changing in this regard.

However, the effect of bringing the entitlement to superannuation within the NES means it will be easier for employees to bring claims against their employer for unpaid super, rather than having to pursue this through the ATO.  A trade union and/or a Fair Work Inspector will also be to apply to the court to enforce superannuation obligations for the employee’s benefit. 

When do these changes take effect: 1 January 2024

What do they mean for employers: Employees will have simpler, quicker and cheaper ways to bring claims against employers when superannuation is not paid.

5. Long service leave in the coal mining industry

Employees in the coal mining industry have the benefit of “portable” long service leave entitlements, meaning they accrue long service leave based on their length of service in the industry, regardless of whether they change employers or not.

This is administered by employers paying levies into a central fund, based on their employee numbers and the number of hours the employees work.

The changes to legislation provide greater rights for casual employees by ensuring that they are treated no less favourably than permanent employees for the purposes of their entitlements under the scheme by ensuring that, going forward,  their casual loading will be applied to levy payments by the employer and the payment of the long service leave entitlement to the employee. 

There will also be updated methods for calculating the accrual of a casual employees’ long service leave entitlement.

When do these changes take effect: 1 January 2024 (unless an earlier date is decided upon)

What do they mean for employers: Employers in the coal mining industry will need to ensure they understand the new obligations in respect of casual employee levies and entitlements.

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