Friday, 16 June 2023

More employment law changes on the horizon: What employers need to know about the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill

Earlier this year the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (PWE Bill) was introduced into Parliament, which seeks to continue to advance the Labor Government’s agenda to safeguard and enhance employees’ entitlements and conditions of employment by making further changes to the Fair Work Act (FW Act).

Some of the key changes in the PWE Bill are to:

  • allow parents to take up to 100 days of flexible unpaid parental leave (currently 30 days) of their 12 month unpaid parental leave entitlement, and other changes to parental leave entitlements;
  • make superannuation an enshrined entitlement under the National Employment Standards;
  • expand the circumstances in which employees can agree to multiple and ongoing deductions from their pay;
  • provide migrant workers with protections under the FW Act, regardless of their immigration status;
  • provide clarity regarding the application of an enterprise agreement when it is replaced by a later Workplace Determination; and
  • ensure casual employees in the coal mining industry are not treated less favourably than permanent employees in relation to long service leave.

We discuss these changes in more detail below.

Changes to parental leave

Currently, employees can access up to 30 days of their 12 months unpaid parental leave under the FW Act as ‘flexible unpaid parental leave’. The PWE Bill proposes to extend this to 100 days, directed at allowing parents to return to work earlier, but enable them the flexibility to access these days after their return to work, as agreed with their employer.

There are also other proposed changes to parental leave, including:

  • allowing employees to commence unpaid parental leave at any time in the 24 months following the birth or placement of their child;
  • removing barriers preventing employee couples from taking unpaid parental leave at the same time;
  • allowing pregnant employees to access flexible unpaid parental leave in the 6 weeks prior to expected birth of their child; and
  • allowing parents to request an extension to their period of unpaid parental leave, regardless of the amount of leave the other parent has taken, meaning in practice each parent may be able to access up to 24 months of unpaid parental leave.

Employees will still need to comply with the FW Act’s existing notice requirements, however employers should be mindful that employees’ extended rights to unpaid parental leave may pose challenges to rostering and increase the need for temporary contract work during employee absences.

Superannuation to be included as a National Employment Standard

While employers are legally required to correctly pay superannuation to workers under superannuation legislation, the PWE Bill proposes to make the payment of superannuation a right enshrined in the National Employment Standards contained in the FW Act.

While the primary responsibility for overseeing employer’s superannuation compliance remains with the ATO, the enshrined right would increase employees’ ability to recover their unpaid superannuation through a small claims court, various employee organisations or the Fair Work Inspector.

Authorised deductions from employees’ pay

Currently, under the FW Act, there are limited situations where deductions may be made from employees’ remuneration, and a deduction requires renewed written authorisation on every occasion.
The PWE Bill proposes that variable deductions can be made, (up to an authorised limit), without the need for new written authorisation. However, if the proposed deduction exceeds the authorised limit, the employer will need to obtain written authorisation to do so.

While this proposed change intends to alleviate the administrative burden on both employers and employees, authorised deductions can still only be made if they are principally for the employee’s benefit.

Protection for migrant workers

The PWE Bill intends to extend the protections under the FW Act to migrant workers, (including temporary migrant workers), regardless of their immigration status.

This means that migrant workers, including those who may have breached work-related employment conditions and don’t have the right to work/be in Australia, will be entitled to the same wages and entitlements as other employees. While migrant workers who have breached such can still be prosecuted under the Migration Act (Cth) 1958, they will be entitled to receive their correct compensation for all the hours that they worked under the relevant industrial instrument.

Enterprise agreements and workplace determinations

The PWE Bill proposes to confirm the common understanding between employers and employees that when a new workplace determination has been approved by the Fair Work Commission that covers an employee in relation to the same employment that an enterprise agreement has previously covered, the enterprise agreement ceases to apply to that employee in relation to their employment, and cannot apply again.

Long service leave for casual employees in the coal mining industry

The PWE Bill aims to amend the way that long service leave is accrued and calculated for casuals engaged in the coal mining industry.

The proposed amendments include ensuring the method of accruing and calculating casual employees’ long service leave entitlements means that both casual and permanent employees receive the same amount of entitlement accrual for the same hours worked. There is also a proposed amendment to the calculation method.

What does it mean for employers?

While these changes are yet to be formally legislated, employers will need to be aware of the numerous proposed amendments and how they may impact their workplaces. HR Legal will keep you updated with relevant developments when the PWE Bill is formally passed by Parliament.

For more information on how these changes may affect your workplace, please contact HR Legal.


This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.