Further employment law changes proposed: the Protecting Worker Entitlements Bill

On 29 March 2023, the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (the Bill) was introduced into Parliament by the Federal Government. It seeks to promote job security and flexibility, protect worker entitlements and address gender inequality. A summary of the key changes proposed by the Bill is set out below.

Implications for employers

If the Bill is passed, employers will need to amend their employment contracts and policies to the extent necessary to ensure that their deductions and parental leave provisions are consistent with these new provisions.

Unpaid parental leave

The Bill proposes a number of changes to the unpaid parental leave provisions in the National Employment Standards (NES) under the Fair Work Act 2009 (Cth) (the FW Act) to provide more flexible access to unpaid parental leave, including:

• increasing the number of days of flexible unpaid parental leave an employee can access from 30 to 100, and allowing such leave to be taken before, as well as after, a period of continuous parental leave;
• enabling pregnant employees to access their flexible unpaid parental leave up to 6 weeks before the expected date of birth of their child;
• allowing employees to commence unpaid parental leave at any time during the 24 months following the birth or placement of the child; and
• removing the barriers to employee couples taking unpaid parental leave at the same time so that all employees can take up to 12 months’ unpaid parental leave (and can request up to a further 12 months’ leave) regardless of how much leave their spouse or partner takes and/or the timing of that leave.

Superannuation as a NES entitlement

The Bill proposes to insert a right to superannuation into the NES. In particular, the NES will require an employer to make contributions to a superannuation fund for the benefit of an employee so as to avoid liability to pay the superannuation guarantee charge under superannuation legislation. A failure to do so will amount to a contravention of the NES, which could result in the imposition of civil penalties and other court orders such as compensation. This amendment will increase the number of employees who are able to enforce their right to superannuation as it provides employees with a legislative workplace right to superannuation.

Deductions

The Bill expands the circumstances in which employees can authorise employers to make valid deductions from payments due to them. The FW Act currently allows an employer to make deductions from amounts payable to employees in particular circumstances, including where the deduction is authorised in writing by the employee and is principally for the employee’s benefit. Currently, the FW Act provides that where an employee authorises such a deduction, the employee’s authorisation must specify the amount of the deduction. This means that a new authorisation is required in the event that there is any variation to the amount of an authorised deduction.

The changes proposed by the Bill are to:

• provide that where an employee authorises multiple or ongoing deductions, the authorisation must specify whether the deductions are for a specified amount or  can be varied from time to time; and
• include an additional reasonableness requirement where the deduction is directly or indirectly for the benefit of the employer (or a related party) and is for an amount that may be varied from time to time.

These changes seek to ensure greater protection for employees in respect of these authorised deductions and less administration.

Other amendments

Other amendments in the Bill include:

• Migrant workers – the introduction of a new provision dealing with the interaction between the FW Act and the Migration Act 1958, which provides that the Migration Act or an instrument under it (such as a visa) does not have any impact on the validity of a contract of employment or contract for services for the purposes of the FW Act. This is intended to safeguard the rights of migrant workers working within Australia by ensuring that they are entitled to the benefits under the FW Act regardless of their migration status;
• Workplace determinations – the introduction of a new provision confirming that when a workplace determination comes into operation, an earlier enterprise agreement will cease to apply; and
• Coal mining long service leave scheme – amendments to the Coal Mining Industry (Long Service Leave) Administration Act 1992 relating to the calculation of long service leave entitlements for casual mineworkers in the black coal mining industry to ensure they are treated no less favourably than full-time employees.

Workplace Gender Equality Amendment (Closing the Gender Pay Gap) Bill 2023 

In addition, employers should be aware that the Workplace Gender Equality Amendment (Closing the Gender Pay Gap) Act 2023 (WGEA Bill) was passed by Federal Parliament this week.  The WGEA Bill requires employers with over 100 employees to: 

• report their gender pay gaps to the Workplace Gender Equality Agency (WGEA), who will publish this aggregate information for each employer on its website from 2024; and

• ensure their CEOs provide to the organisation’s governing body a report by the WGEA regarding how their organisation performs relative to the relevant industry in terms of gender pay equality.

The WGEA Bill also clarifies the requirement for employers to report on sexual harassment to WGEA.