Alert: New Changes to the Fair Work Act

The Albanese Federal Government recently passed its second tranche of amendments to the Fair Work Act 2009 (Cth) (FW Act). While these changes are not as numerous or as profound as those introduced late last year under the Secure Jobs, Better Pay Act, there are a number of important changes of which employers should be aware.

What are the key changes?

The key features of the new laws are as follows:

• Superannuation: From 1 January 2024, the National Employment Standards (NES) will include an express right to superannuation contributions. Of course, employers already have an obligation to pay superannuation contributions under the applicable superannuation laws, with the ATO having the primary responsibility for ensuring that employers discharge that obligation. That will not change. However, including superannuation as a right under the NES will allow employees, unions and the Fair Work Ombudsman (FWO) to bring their own proceedings to recover unpaid superannuation contributions as well as associated penalties as a breach of the NES.
• Unpaid parental leave: The parental leave provisions of the FW Act have been amended so that:
  1. 1. both working parents may take up to 100 days of their 12 month unpaid parental leave entitlement flexibly, including as single days (this was previously limited to 30 days);
     2. flexible unpaid parental leave can now be taken before, as well as after, a parent commenced a period of continuous unpaid parental leave;
     3. pregnant employees will be able to access their flexible unpaid leave entitlement up to 6 weeks before their expected birth day of their child;
     4. employees can access unpaid parental leave anytime within the 24 months following the birth or placement of their child;
     5. the amount of unpaid parental leave employees who are married or in a de factor relationship can take concurrently is no longer limited to 8 weeks. Instead, both employees can take up to 12 months of unpaid parental leave and can request an extension of up to 12 months, irrespective of the amount of leave the other parent takes.

• Employee authorised deductions: Currently, employers are unable to make deductions from an employee’s salary where the amount varies without obtaining written authority each time. From 30 December 2023, employees will be able to authorise their employers to make recurring or regular deductions from their salary for amounts that vary, provided the authorisation is in writing and the deductions are principally for the benefit of the employee (and not the employer).

• Protection for migrant workers: The FW Act has been amended to try to ensure that all migrant workers are entitled to the benefits of that Act, including the NES, regardless of their immigration status and whether they have a legal right to work in Australia.

Implications for Employers

Employers should familiarise themselves with the new laws to ensure they in a position to comply with them going forward. For many employers, this will require a review of their existing parental leave policies and procedures to ensure they reflect the new laws as well as reviewing existing arrangements for employee deductions.