On 22 June 2023, the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 passed Parliament. 

The Bill introduced changes to the employment relations framework that improve entitlements for workers and provide greater clarity in certain areas.

The changes relate to:
•    unpaid parental leave
•    superannuation in the National Employment Standards (NES)
•    employee authorised deductions
•    protection for migrant workers
•    workplace determinations.

Unpaid parental leave

The Bill has introduced major changes to unpaid parental leave, allowing for greater flexibility in how leave can be taken. 

These changes apply to all parental leave taken from 1 July 2023. 

The amendments also align with changes to the Paid Parental Leave Act 2010, which governs the provision of government-funded parental leave pay. 

For clarity, any reference to ‘parental leave’ in this article refers to the unpaid parental leave entitlement.

Taking parental leave

Under the changes, both parents can take parental leave any time within 24 months after the birth or placement of the child.

Parents can each take up to 12 months of parental leave over 24 months, regardless of how much leave the other parent has taken. 

Both parents can also request to extend their own parental leave period by up to 12 additional months, without affecting the leave available for the other parent to take.

Concurrent leave

Employees who are married or in a de facto relationship could previously only take eight weeks of their respective parental leave periods at the same time (known as ‘concurrent leave’). 

This limitation has been removed—employees can now take some or all of their parental leave at the same time without limitation.

Flexible parental leave

Flexible parental leave allows employees to take some of their parental leave flexibly up to their child’s second birthday or placement anniversary. 

The number of flexible parental leave days that can be taken has been expanded from 30 to 100 days, which can be taken over a 24-month period. 

Pregnant employees can now access some of this flexible entitlement during the six weeks prior to the birth.

Other amendments related to parental leave

Several amendments to parental leave provisions in the Fair Work Act 2009 introduce more gender-neutral language. 

Various references to ‘maternity leave’ throughout the Fair Work Act 2009 will be replaced with ‘parental leave’ instead. 

This includes references to ‘unpaid special maternity leave’ being replaced with ‘unpaid special parental leave’ although there is no material change to that entitlement.

Superannuation

The Bill has also introduced significant changes to superannuation, aimed at bolstering countermeasures against non-payment or underpayment of the superannuation guarantee. 

Changes regarding superannuation come into effect on 1 January 2024.

Right to superannuation to be included in the NES

The NES will be amended to include the right to superannuation contributions. 

These changes are primarily intended to combat unpaid/underpaid superannuation and to complement and reinforce the existing superannuation guarantee laws.

Currently, the ability to enforce the entitlement to superannuation within the industrial relations system is limited to employees covered by a modern award or enterprise agreement that explicitly includes a provision for such contributions.

Incorporating superannuation into the NES will broaden this scope and allow award-free employees to pursue appropriate action in the case of unpaid superannuation contributions.

This change effectively expands the number of national system employees who are afforded the workplace right to superannuation under Australia’s national workplace relations system. 

An employee organisation or a Fair Work Inspector can also apply to enforce it.

The Fair Work Ombudsman may pursue unpaid superannuation in a complementary role to the Australian Taxation Office.

However, if the Australian Taxation Office has already commenced legal proceedings to recover unpaid superannuation, the Fair Work Ombudsman is unable to do so on behalf of the employee.

Existing superannuation guarantee laws

It is important to note that this does not mean that existing superannuation legislation will no longer apply and employers must still ensure that they adhere to their obligations under the Superannuation Guarantee Charge Act 1992. 

Superannuation guarantee charges can still be applicable if they fail to do so. 

If employers have already fulfilled their obligations in accordance with this law, there would be no additional contravention of the NES provisions.

Additional provisions of the Bill

Workplace determinations

The Fair Work Act 2009 has also been amended to include an express interaction rule between workplace determinations and enterprise agreements. 

Essentially, it provides concrete certainty that when the Fair Work Commission makes a workplace determination concerning a new enterprise agreement, the old one will cease to apply to employees. 

These amendments took effect on 1 July 2023.

Employee authorised deductions 

Greater clarity and flexibility have been introduced to provisions concerning employee authorised deductions, which are principally for the employee’s benefit (such as a salary sacrifice arrangement or additional superannuation contributions).

Previously, where the amount of an employee authorised deduction varied, a new written authorisation was required each time. 

The amendments allow for salary deductions that are ongoing and vary from time to time.

This provides greater flexibility to both employers and employees, since an employee can choose to allow deductions that vary from time to time (and even establish an upper limit) or they may choose to authorise specific amounts only. 

It also makes the process smoother from an administration perspective. These amendments will come into effect from 30 December 2023.

Migrant protections

This change affects the interaction between the Fair Work Act 2009 and the Migration Act 1958—essentially, a breach of the Migration Act 1958 will not invalidate a contract of employment under the Fair Work Act 2009.

This confirms that a migrant working in Australia is still subject to the Fair Work Act 2009 and the benefits it provides regardless of their migration status and any breaches to it and provides additional security
to these workers. 

This new provision commenced on 1 July 2023.

In summary

The passing of the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 signifies an intent to more firmly safeguard the rights and entitlements of national system employees. 

There are an array of changes that pose additional considerations to employers and it would be prudent for employers to go over these changes to ensure that they remain compliant.

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