Changes to the Fair Work Act, made by passage of the Protecting Worker Entitlements Act, have an impact on specific workers and situations. There have been changes to the operation of parental leave and changes to protections offered to migrant workers as well as changes to the operation of superannuation and the recognition of leave for casuals in some industries that all employers need to understand now.
Parental Leave
From 1 July 2023 changes to the Paid Parental Leave scheme, including the deletion of the Dad and Partner Pay approach in favour of providing a higher 20 weeks of leave, able to be taken by either parent in one block or in multiple blocks between the birth or adoption and extending 24 months, or 2 years, from that date. Corresponding to this the Fair Work Act has also been changed and will now include greater flexibility for employees taking unpaid parental leave.
Employees can now take unpaid parental leave up to 100 days of their 12 month leave entitlement flexibly during the 24 month period after the birth or placement of their child. This is an increase from the previous 30 day entitlement.
Pregnant employees will also be able to access their flexible unpaid parental leave up to 6 weeks before the expected date of birth of their child.
The changes also remove the prohibition on both parents accessing paid/unpaid parental leave at the same time (what used to be known as concurrent leave).
Both parents will be able to take up to 12 months unpaid parental leave at any time within 24 months of their child’s birth or placement. They can also both apply for an extension of up to 12 months beyond the initial 12 month leave amount.
The Fair Work Ombudsman has now updated their guidance online on the operation of both paid and unpaid parental leave in line with these changes – https://www.fairwork.gov.au/leave/maternity-and-parental-leave
Migrant Worker Protections
All workers working in Australia have the same rights and entitlements under the workplace laws. There is no difference to the entitlements, wages or conditions between an worker who is born in Australia or who has residency or who may be visiting on a short or long term. All workers are the same in the eyes of the employment laws.
The changes that were made to the Fair Work Act as part of the Protecting Worker Entitlements Act, which came into effect on 1 July 2023, have sought to clarify a common misconception that a migrant worker who breaches the Migration Act, such as by breaching their visa conditions, is not entitled to the same entitlements, wages or conditions as another worker.
This change makes it very clear that:
- migrant workers continue to have these rights and entitlements regardless of their migration status under the Migration Act 1958
- a breach of that Act doesn’t affect the validity of an employment contract or a contract for services.
This includes in circumstances where a migrant worker:
- has breached a condition of their visa
- doesn’t have work rights, or
- doesn’t have the right to be in Australia.
The Fair Work Ombudsman has updated their guidance for visa restricted and migrant workers – https://www.fairwork.gov.au/find-help-for/visa-holders-migrants
Sperannuation Changes
The Act has also created a right to be paid superannuation that, from 1 January 2024, will sit in the National Employment Standards.
“This is on the face of it not a big change. Employers that are meeting their superannuation requirements as outlined by the ATO will not see or feel any difference once superannuation is also included in the National Employment Standards. The reason for the change then is to allow for the Fair Work Ombudsman and Unions to pursue employers who are not complying with superannuation requirements for breach of the Fair Work Act. Such breaches would include the civil penalties provided for within the Fair Work Act now and the significantly higher breach penalties currently being considered by the Government for trance 2 of the employment law changes”, explains ACAPMAs Elisha Radwanowski
Other Changes
There were also changes to allow for employees to direct a portion of their pay to particular locations in a more streamlined manner as well as changes to provide for portability of long service leave accrual for casuals in the coal industry.
More Information
For more on the changes to the Fair Work Act triggered by the Protecting Worker Entitlements Act see: https://www.fairwork.gov.au/newsroom/news/fair-work-act-changes-protecting-worker-entitlements
Here to Help
This article is general in nature and covers things to consider, implement and watch out for in your business. It is provided as general advice and you should seek further advice on your situation. ACAPMA Employment Professionals are available to assist ACAPMA members via employment@acapma.com.au . ACAPMA membership is affordable at only $860inc GST per year for a 1-5 site business, and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts. Visit: https://acapma.com.au/membership/ to learn more or to apply for ACAPMA membership.
Elisha Radwanowski BCom(HRM&IR)
Executive Manager for Employment and Compliance
ACAPMA
