The recent Protecting Worker Entitlements reforms introduce several changes affecting superannuation, protections for migrant workers, access to unpaid parental leave, and the circumstances in which an employee can authorise their employer to make permitted deductions from their remuneration.
Principal to the new reforms is the introduction of a right to superannuation contributions within the National Employment Standards (NES), effective from 1 January 2024.
Although employers were previously obliged to pay contributions under superannuation legislation, the incorporation of superannuation obligations into the NES means that:
- unpaid superannuation contributions can be recovered by a greater number of employees, the Fair Work Ombudsman or employee organisations such as unions (and employees will no longer need to rely solely on the ATO)
- employers who fail to make superannuation contributions to employees may now also be liable for compensation and/or financial penalties under the Fair Work Act for non-compliance with their superannuation obligations
The planned changes requiring employers to pay superannuation at the same time as remuneration from 1 July 2026 complement these changes and increase the importance of compliance.
The ATO though will continue to be primarily responsible for ensuring compliance with superannuation guarantee laws, and employees will not be able to rely on their NES right to pursue the same unpaid superannuation contributions if the ATO has already begun doing so.
Unpaid Parental Leave
Under the Fair Work Act, all employees (including certain casuals) are entitled to 12 months (or 24 months, if agreed to by their employer) of unpaid parental leave.
However, the new reforms also provide that from 1 July 2023 relevant employees are entitled to:
- take up to 12 months of unpaid parental leave at any time within 24 months of their child’s birth or adoption
- take up to 100 days of their unpaid parental leave flexibly
- if pregnant, access their flexible unpaid parental leave up to 6 weeks prior to the expected birth date of their child
- take unpaid parental leave at the same time as their partner (previously this was limited to 8 weeks of concurrent leave)
Currently, the Fair Work Act severely limits the ability of an employer to make deductions from an employee’s remuneration.
From 30 December 2023, an employee will be able to authorise their employer to make beneficial deductions from their remuneration which are recurring and vary from time to time. A common example of this would be union membership fees which are subject to change from time to time.
From 1 July 2023 all migrant workers have the same rights and entitlements as other employees under workplace laws and regardless of any breach of the Migration Act.
The reforms make clear that a migrant worker’s migration status, their right to be or work in Australia, or breach of a condition of their visa will not affect their continuing entitlement to rights and protections under Australian workplace laws.
The reforms also make clear that an independent contractor’s migration status or breach of a condition of their visa will not affect the validity or enforceability of any contract of services they are a party to.
We recommend employers adopt a proactive approach to address the reforms now including by:
- reviewing and updating policies and procedures, employment agreements and other documents relating to parental leave (both paid and unpaid) and authorised deductions from remuneration
- ensuring that all employees (particularly managers and other key decision-makers) are aware that migrant workers enjoy the same rights and entitlements under Australian workplace laws regardless of any non-compliance with migration laws
- ensuring superannuation contributions are accurate and paid on time
If you have any questions in respect of the above or would like any other employment related assistance, please contact a member of our Matthews Folbigg Workplace Solutions team
DISCLAIMER: This article is provided to readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as a definitive or complete statement of the relevant law.
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