Earlier this week, the Federal Government introduced the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Bill), which aims to protect worker entitlements, promote gender equality and improve fairness by:
- including a right to superannuation in the National Employment Standards (NES) to protect workers against super theft;
- clarifying the application of legal protections to migrant workers on temporary visas;
- providing stronger access to flexible unpaid parental leave to allow families to share work and caring responsibilities;
- amending unfair laws that reduce the long service leave entitlements of casual employees in the black coal mining industry; and
- clarifying the interaction between enterprise agreements and workplace determinations.
Superannuation in the NES
Currently, the only way for many employees to pursue unpaid superannuation is through the Australian Taxation Office.
While some employees already have a legally enforceable right to superannuation contributions under a modern award or enterprise agreement, the Bill's proposed changes will ensure that all workers covered by the Fair Work Act 2009 (FW Act) will be able to take legal action.
Protection for migrant workers
The current interaction between the FW Act and the Migration Act 1958 (Migration Act) can exclude migrant workers from the protections under the FW Act; at present, if a migrant worker breaches the Migration Act, their employment contract becomes void and unenforceable at law.
The amendments would clarify the interaction between the FW Act and the Migration Act by providing that a breach of the Migration Act will not affect the validity of a worker's employment contract. Migrant workers would remain entitled to wages and other employment entitlements irrespective of any breach of the Migration Act.
Unpaid parental leave
The Bill will increase flexible unpaid parental leave from 30 days over a 24 month period to 100 days over a 24 month period.
Pregnant employees will also be allowed to take a portion of their 100 days of flexible unpaid parental leave in the 6 weeks before the child's due date.
The amendments would also:
- remove restrictions on married or de facto couples from taking more than 8 weeks of unpaid parental leave at the same time (aligning with changes made to paid parental leave earlier this year); and
- allow each parent to take up to 12 months' unpaid parental leave, and request an extension of up to 12 months.
Proposed amendments to the Coal Mining Industry (Long Service Leave Funding) Scheme
The Bill would implement Recommendation 4 of KPMG's 2021 Independent Review of the Coal Mining Industry (Long Service Leave Funding) Scheme Report which recommended legislation "to ensure that casual employees are treated no less favourably than permanent employees in the Scheme."
The Bill will provide fairer calculation of long service leave for casual coal mineworkers and ensure casual employees are not treated less favourably than permanent employees.
The amendments would also make it clear that amounts paid out as part of the employee's long-service leave entitlement must include a casual loading.
Importantly for employers, levies paid to the Coal Mining Industry (Long-Service Leave Funding) Scheme must also include casual loading.
The proposed amendments would also clarify how workplace determinations and enterprise agreements interact.
This minor change would confirm that an enterprise agreement which applies to employees in relation to particular employment will not continue to apply if the Fair Work Commission makes a replacement workplace determination in relation to the same employment.
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