Protecting Worker Entitlements Act changes explained

On 30 June 2023, the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Cth) (the Act) received royal assent.

Aimed at protecting worker entitlements and removing some unnecessary administrative burdens, the amendments enhance workers' rights under the Fair Work Act 2009 (Cth) (FW Act) across a range of key areas including superannuation, parental leave, long service leave and more.

Specifically, the amendments include:

• the insertion of an obligation within the National Employment Standards (NES) to pay superannuation contributions;
• amendments to improve the flexibility of unpaid parental leave;
• provisions allowing employees to authorise their employers to make varying and recurring salary deductions;
• protections for migrant workers regardless of their migration status under the Migration Act 1958 (Cth); and
• a levy on employers subject to the Coal Mining Industry (Long Service Leave Funding) Scheme, to allow casual employees in the black-coal mining industry to carry long service leave entitlements with them between employers.

Many of these changes took effect on 1 July 2023 whilst other changes will take effect at the end of 2023 or the start of 2024.

Explore the changes and implications for employers in further detail below.

Superannuation entitlements

Superannuation contributions are a common part of the wage-work bargain in Australia.

However, currently, only employees covered by an award or an enterprise agreement that includes a requirement for superannuation contributions can apply to court to enforce such requirements.

Under the changes to the Act, an employee's entitlement to receive superannuation contributions will be included in the National Employment Standards (NES) within the Fair Work Act 2009 (Cth) (FW Act) such that any unpaid/underpaid superannuation can also be pursued by employees in court. A union or Fair Work inspector can also apply, on behalf of the employee, to enforce the payment of superannuation.

The Australian Taxation Office (ATO) remains the primary body responsible for ensuring superannuation compliance and employees can continue to report unpaid or underpaid superannuation to the ATO.

This change will come into effect on 1 January 2024.

Unpaid parental leave

Changes to unpaid parental leave are designed to provide families with greater choice about how entitlements are used.

Effective 1 July 2023, under the changes:

• employees accessing unpaid parental leave can take 100 days of their 12-month leave entitlement flexibly during a 24-month period after the birth or placement of their child (an increase from the 30-day entitlement);
• pregnant employees are now able to access up to six weeks of flexible unpaid parental leave before a child's expected date of birth;
• employees are now able to take more than eight weeks of unpaid parental leave at the same time as their spouse/de facto partner; and
• both parents are now able to take up to 12 months unpaid parental leave at any time within 24 months of the child's birth or placement, and both parents can apply for an extension of up to 12 additional months.

Authorised employee deductions

Upcoming amendments to provisions allowing employers to make salary deductions are designed to provide greater clarity, flexibility and protections for employees.

Under the changes, employees are allowed to authorise their employers to make varying and recurring salary deductions.

Currently, varying deductions are not allowed, and a new written authorisation is required every time there is a change in deduction amount.

Varying deductions can occur in circumstances such as the payment of union dues, which may vary from month to month.

Under the changes, employees will only need to submit one written authorisation allowing their employer to make a deduction from their salary, which can be withdrawn by an employee, in writing, at any time. This is the case even where the deduction amount varies from time to time.

Varying deductions are prohibited if the deductions directly or indirectly benefit the employer and if they are unreasonable in the circumstances.

These changes will come into effect on 30 December 2023.

Other changes

Protection for migrant workers

Effective 1 July 2023, migrant workers are now entitled to the same rights and entitlements under the FW Act as other employees working in Australia. These changes are applicable regardless of migration status under the Migration Act 1958 (Cth).

Casual employees in black-coal mining industry

These legislative changes will amend the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) and the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 (Cth).

Importantly, when it comes to long service leave entitlements, casual employees in the black-coal mining industry will be allowed to have their casual loading, where applicable, applied to levy payments by the employer into the Coal Mining Industry (Long Service Leave Funding) Scheme.

These changes will come into effect on 1 January 2024 unless an earlier date is fixed by proclamation.

Support

Employers should familiarise themselves with the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 and ensure their current policies and procedures are reviewed in accordance with these changes, particularly with respect to authorised deductions and parental leave. Employers who engage migrant workers should also understand the implications of these changes.

For tailored advice on how these changes may impact your organisation, please contact a member of the Lander & Rogers Workplace Relations and Safety team.