As part of the Australian Government's Protecting Worker Entitlements laws, there have been changes to the Fair Work Act.
Some changes started in July 2023, while others started in December 2023 and January 2024.
Overview
On 22 June 2023, the Australian Government passed the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023. The legislation introduced changes to the Fair Work Act.
The changes had different start dates.
Read on for more information about each change and when each took effect.
Key changes
Changes to unpaid parental leave
These changes took effect on 1 July 2023.
From 1 July 2023, the Fair Work Act includes greater flexibility for employees taking unpaid parental leave. This change is to align with updates made to the Paid Parental Leave scheme from 1 July 2023.
Employees taking unpaid parental leave can take 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 are also able to access their flexible unpaid parental leave up to 6 weeks before the expected date of birth of their child.
Employees are no longer prevented from taking more than 8 weeks of unpaid parental leave at the same time as their spouse or de facto partner (known as concurrent leave).
Both parents can 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.
We've updated our Parental leave section and fact sheet to reflect the changes.
Interaction between enterprise agreements and workplace determinations
These changes took effect on 1 July 2023.
The Fair Work Commission can make a workplace determination that sets terms and conditions of employment which replace an enterprise agreement in some circumstances.
When a workplace determination covering an employee is made, the previous enterprise agreement no longer applies to that employee.
The Fair Work Commission is the national workplace relations tribunal and registered organisations regulator.
Protections for migrant workers
This change took effect on 1 July 2023.
Migrant workers in Australia have always had the same rights and entitlements under workplace laws as other employees working in Australia.
This change clarifies 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.
We've updated our Visa holders and migrants section and fact sheet to reflect the changes.
Employee authorised deductions
These changes took effect on 30 December 2023.
From 30 December 2023, new rules apply for employee authorised deductions from pay that are:
- either one-off or recurring
- for specific amounts or for amounts that change from time to time.
These are called employee authorised deductions and the employee needs to give their permission in writing. Examples of these deductions include payments to a health fund or union fees.
Employers can only make employee authorised deductions where the deductions are mainly for the employee's benefit. Extra rules about when employee authorised deductions are allowed also apply if they:
- are for an amount that can change from time to time
- directly or indirectly benefit the employer (or someone related to them).
Deductions have to be recorded and kept in an employee's records. Pay slips also have to say the:
- amount of any deduction
- name, or name and number of the fund or account the deduction was paid into.
Awards and registered agreements can also allow for deductions from pay to be made in some circumstances.
We've updated our Deductions and related issues section to reflect the changes.
Right to superannuation in the National Employment Standards
These changes took effect on 1 January 2024.
From 1 January 2024, the National Employment Standards (NES) includes a right to superannuation contributions. This means that most employees covered by the NES can take court action under the Fair Work Act to recover unpaid or underpaid superannuation.
Employers already have an obligation to pay superannuation contributions for eligible employees under superannuation guarantee laws. There would be no contravention of the NES provision where an employer has met their obligations under these laws.
The Australian Taxation Office (ATO) continues to have the main responsibility for ensuring compliance with employer obligations under superannuation guarantee laws.
We (the Fair Work Ombudsman) can continue to make referrals involving unpaid superannuation to the ATO.
We have updated the following pages to reflect these changes:
Updated Fair Work Information Statement
The Fair Work Information Statement, which employers must give to new employees, now includes superannuation as part of the NES.
Download the updated version at Fair Work Information Statement.
Casual employees in the black coal mining industry
These changes took effect on 1 January 2024.
Employees in the black coal mining industry are entitled to portable long service leave entitlements that go with them between employers. This is managed by the Coal Mining Industry (Long Service Leave Funding) Corporation (Coal LSL).
There are changes to:
- clarify that the amount paid out as part of an employee's long service leave entitlement must include casual loading (where it applies)
- the method for the accrual of long service leave for casual employees.
For more information, go to the Coal LSL website: Protecting Worker Entitlements.
