IR reforms 2.0: new protections and entitlements in Protecting Worker Entitlements Bill passed by Federal Parliament

On 22 June 2023, the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 passed Parliament and marks the second tranche of industrial relations reforms introduced by the Federal Government. The Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 received Royal Assent on 30 June 2023 and has passed into law.

Although largely considered uncontentious in comparison to the first tranche of reforms, the second tranche of reforms amends the Fair Work Act 2009 and related legislation to strengthen worker entitlements, address gender inequality and remove previous administrative burdens for employers, and includes:

• increased protections for migrant workers;
• addressing gender neutrality in and expanding unpaid parental leave entitlements;
• introducing superannuation guarantee contributions as a new entitlement under the National Employment Standards (NES);
• expanding access to employee-authorised deductions, and
• introducing long service leave for casual coal mine workers.

Stronger protections for migrant workers

The Protecting Worker Entitlements Act is aimed at ensuring worker entitlements are protected under the Fair Work Act regardless of immigration status. The amendments now clarify that a migrant worker, including a temporary migrant worker, will remain entitled (at all times) to the protections contained in the Fair Work Act regarding wage and employment entitlements, despite if the worker breaches the Migration Act 1958 or an instrument made under it.

Previously, if a migrant worker breached the Migration Act or relevant instrument, the worker's employment contract became void and unenforceable at law, and as a result, the worker lost their wage and employment entitlements afforded by the Fair Work Act.

These changes came into effect on 1 July 2023.

Greater access to unpaid parental leave

The Protecting Worker Entitlements Act strengthens access to when both parents may take flexible unpaid parental leave, increases previous entitlement amounts and increases the period in which employees can access flexible leave. The changes align entitlements to flexible unpaid parental leave to those contained in the Paid Parental Leave Act 2010. The changes:

• increase the entitlement from 30 days of flexible unpaid parental leave to 100 days (20 weeks) of flexible unpaid parental leave. These flexible days are taken from the 12-month entitlement to unpaid parental leave;
• allow employees to commence flexible unpaid parental leave at any time in the 24 months following the birth or placement of their child (previously, this had to be taken as a single continuous period); and
• allow employees to take flexible unpaid parental leave before or after a period of continuous unpaid parental leave (previously, taking flexible unpaid parental leave meant employees would forfeit any remaining entitlement to take continuous unpaid leave).

The changes also:

• provide greater flexibility to pregnant employees by allowing them to take flexible unpaid parental leave in the six weeks prior to the expected birth date of the child;
• remove the limitations on employee couples taking concurrent leave, which previously placed an 8-week limit on employee couples both taking unpaid leave at the same time. Now unpaid leave is available to both parents regardless of how much leave the other parent takes or when they take it; and
• updates the language of the parental leave provisions within the Fair Work Act, replacing them with gender-neutral terms by replacing "maternity leave" with "parental leave" and removing gender pronouns.

These changes came into effect on 1 July 2023.

Superannuation enshrined in the National Employment Standards

The Protecting Worker Entitlements Act amends the National Employment Standards (NES) to include that superannuation guarantee contributions paid by employers are now an entitlement under them. Previously, this was not expressly included in the Fair Work Act as it was otherwise governed by specific tax legislation.

The changes in this space also:

• expand who can collect/recover unpaid superannuation from employers from being only the Commissioner of Taxation to now include employees, unions or the Fair Work Ombudsman and are intended to complement, not replace, the Australian Taxation Office's existing powers to collect unpaid superannuation;
• prevent employers from being subject to multiple proceedings in respect of attempting to recover the same unpaid superannuation contributions both under the Fair Work Act and proceedings with the Commissioner of Taxation; and
• insert a new provision into the Fair Work Act to clarify that an employer does not contravene the superannuation term of a Modern Award, which requires an employer to make contributions to a superannuation fund for the benefit of an employee, where the employer has paid the superannuation guarantee charge under the Superannuation Guarantee (Administration) Act 1992.

These changes come into effect on 1 January 2024.

Clarifying operation of workplace determinations replacing enterprise agreements

Previously, when a workplace determination came into effect, it was intended to displace an earlier enterprise agreement, but the Fair Work Act did not expressly state this. The reforms provide clarity by now expressly providing for this intention.

This change came into effect on 1 July 2023.

Expanding access to employee-authorised deductions

The Protecting Worker Entitlements Act expands the circumstances in which an employee can authorise an employer to make valid deductions (for example, to a health fund or union fees) from payments to the employee where the deduction is principally for the employee's benefit.

Currently, employers cannot make an authorised deduction where the amount of the deduction varies, even by only a minimal amount, without a new written authorisation each time.

The reforms now allow an employee's initial written deduction authorisation to specify that the amount of the deduction can be varied from time to time without the need to issue a new written authorisation.

This change will come into effect on 30 December 2023.

Long service leave for casual coal mine workers

The Protecting Worker Entitlements Act introduces specific measures for casual workers in the black coal mining industry under the Coal Mining Industry Long Service Leave Scheme. The reforms ensure that casual coal mine workers are treated no less favorably than permanent employees regarding the accrual and access to long service leave entitlements.

Commencement dates for the Protecting Worker Entitlements Act