Protecting Worker Entitlements Act Now in Full Force
The amendments made by the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (‘PWE Act’) to the Fair Work Act 2009 (Cth) (‘FW Act’) are now in full force.
The PWE Act was assented to on 30 June 2023 with a range of amendments coming into force from 1 July 2023 to 1 January 2024. This article outlines the changes and respective dates of operation.
From 1 July 2023, the changes are as follows:
Protection for Migrant Workers
It has been made clear that a breach of the Migration Act 1958 (Cth) or an instrument made under it will not affect the validity of an employment contract or a contract for services for the purpose of the FW Act.
This amendment ensures that migrant workers including temporary migrant workers working in Australia are entitled to the benefit of the FW Act regardless of their immigration status.
Unpaid Parental Leave
Flexible unpaid parental leave is already an entitlement under the National Employment Standards (‘NES’) of the FW Act.
These amendments increase the portion of flexible unpaid parental leave that may be taken from 30 to 100 days (or a higher number prescribed by regulation). Flexible unpaid parental leave can also be taken before, as well as after, a period of continuous unpaid parental leave.
In particular, the amendments:
- Allow employees to commence unpaid parental leave at any time in the 24 months following the birth or placement of their child;
- Remove barriers preventing couples from taking unpaid parental leave at the same time;
- Allows pregnant employees to access flexible unpaid parental leave in the 6 weeks prior to the expected birth of their child;
- Allows parents to request an extension to their period of unpaid parental leave regardless of the amount of leave the other parent has taken.
No Contravention of Modern Award if Electing to Pay SGC
The FW Act already requires a modern award to contain a term requiring an employer to make contributions to a superannuation fund for the benefit of an employee covered by a modern award in order to avoid liability to pay a Superannuation Guarantee Charge (‘SGC’).
This amendment clarifies that an employer will not contravene this term by electing to pay the SGC with respect to the employee, which the employer is entitled to do so pursuant to the Superannuation Guarantee Charge Act 1992 (Cth).
Workplace Determinations – Enterprise Agreements
It has been clarified that an enterprise agreement ceases to apply when it is replaced by a workplace determination. Workplace determinations generally operate and interact with other industrial instruments as if these were enterprise agreements with some exceptions.
The amendments provide for a specific interaction rule between a workplace determination and an earlier enterprise agreement.
From 30 December 2023, the changes are as follows:
Employee Authorised Deductions
There has been an extension to the circumstances in which employees can authorize employers to make valid deductions from payments due to employees. However, this is only where the deductions are principally for the employee’s benefit. An employee is permitted to give a written authorization to an employer to make regular deductions for amounts that vary from time to time provided the deductions are not for the direct or indirect benefit of the employer. This is to accommodate instances where for example, there are fee changes for a specified deduction. Previously employees had to provide employers with a new written authority on each occasion the amount of an authorized deduction varied.
From 1 January 2024, the changes are as follows:
NES – Superannuation Contributions
Superannuation contributions has become a new entitlement under the NES of the FW Act. The amendments require employers to make contributions to an employee’s superannuation fund to avoid liability under the Superannuation Guarantee Charge Act 1992 (Cth). An employer who contravenes this entitlement may be subject to a civil penalty and court orders including compensation.
Coal Mining Long Service Leave Scheme
These amendments affect the coal mining long service leave scheme to ensure that casual employees are treated no less favourably than permanent employees. The changes clarify that a casual employee’s long service leave entitlement must include a casual loading (where it applies) and expands the meaning of qualifying service to include certain weeks where a casual employee does not work due to specific rostering arrangements.
Key Takeaways
For most private sector employers these amendments will not be as onerous when compared with other FW Act amendments currently in operation. Nevertheless, it is important to be mindful of these changes.
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If you would like to know more about these legislative changes, please contact us and a Mapien Workplace Strategist will be in touch ASAP.