Changes to the Fair Work Act 2009 proposed to bolster worker entitlements

On 29 March 2023, the Federal Government introduced the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (the Bill) into Parliament. The Bill amends the Fair Work Act 2009 (Cth) (FW Act) and aims to strengthen and protect worker entitlements, and promote job security and flexibility. A summary of the major changes proposed by the Bill is set out below.

Superannuation as a NES entitlement

One of the most significant amendments proposed by the Bill is the inclusion of employer superannuation as a right under the National Employment Standards (NES).

Currently, employers are required to make contributions to a superannuation fund for the benefit of an employee, in order to avoid paying the superannuation guarantee charge imposed under the Superannuation Guarantee (Administration) Act 1992 (Cth). However, there are limited options available to employees (particularly those who are not covered by modern awards) to rectify underpayment of superannuation, beyond the employee making a complaint to the Australian Taxation Office.

The proposed amendments mean that a failure to pay superannuation will constitute a contravention of the NES, which may result in the employer attracting civil penalties, in addition to being required to pay compensation to an affected employee.

Increases in flexibility of unpaid parental leave

The Bill also proposes several changes to the unpaid parental leave provisions of the NES to increase the flexibility of unpaid parental leave.

The proposed changes include:

• an increase in the number of days of flexible unpaid parental leave an employee is entitled to, from 30 days over a 24-month period, to 100 days over a 24 month period;
• allowing pregnant employees to take flexible unpaid parental leave up to six weeks before the estimated date of the birth of the child;
• allowing eligible employees to access their flexible unpaid parental leave within 24 months following the birth of their child; and
• removing restrictions on couples who wish to take unpaid parental leave at the same time.

Expansion of valid deductions

The Bill also expands the circumstances in which an employee can authorise their employer to make a valid deduction from their pay, under section 324 of the FW Act.

The proposed amendment provides that where a deduction is made for an employee’s benefit (for example, for union memberships or health insurances), and that employee authorises several or repeated deductions, the employer is authorised to vary the amount of the deduction if those fees vary from time to time. The authorisation may be withdrawn by the employee at any stage.

Other amendments

The Bill introduces a new provision into the FW Act which stipulates that the Migration Act 1958 (Cth) or an instrument issued under it does not impact on the validity of an employment contract or contract for services. This ensures that migrant workers are afforded protections afforded by the FW Act, regardless of their immigration status.

Finally, the Bill contains amendments to the Coal Mining Industry (Long Service Leave) Administration Act 1992, which will ensure that casual employees employed under this Act are treated equally to permanent employees, in terms of their accrual and access of long service leave entitlements.

Take home messages

While the changes to the Federal industrial laws are yet to be assented and therefore implemented, employers should become familiar with the changes and the impacts they may have on their organisation.

Should you wish to discuss any material contained in this article, or if you require assistance with navigating the implications of these proposed legislative entitlements, please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, Thomas Tagirara on + 61 8217 1337 or ttagirara@normans.com.au or Annabelle Narayan on +61 8210 1292 or anarayan@normans.com.au.