IR CHANGES COMMENCED

Further to the IR Alert of June 28, the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Cth) has received Royal Assent.

At the time of writing the June 28 article, the date of Royal Assent was unknown. For the benefit of members, Royal Assent occurred on June 30, meaning the Bill is now an Act.

The Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Cth) (‘Protecting Worker Act’) is the second tranche of changes and has amended the:

• Fair Work Act 2009 (Cth) (FW Act); and
• Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth); and
• Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 (Cth).

The first tranche saw a number of reform items introduced in December 2022.

What are the changes?

1. Unpaid Parental Leave

• From July 1, employees are entitled to greater flexibility in how they access and utilise their unpaid parental leave (‘UPL’) in the FW Act:
  • Employees will be able to start and end their UPL at any time within the 24 months following the birth of the child. ¹
  • Pregnant employees will be able to access flexible UPL up to six weeks prior to the expected birth of the child. ²
  • Employees will have the amount of flexible UPL they can access, increasing from 30 days (six weeks) to 100 days (20 weeks). ³
  • Barriers that limit both parents of a working couple taking UPL at the same time (concurrent leave), have been removed. ⁴
  • Parents seeking to request an extension to their period of UPL beyond the initial entitlement to 12 months UPL up to 24 months, will not impact or reduced their partner’s entitlement to UPL. ⁵

• All other entitlements and requirements for accessing UPL and flexible UPL remain unchanged.
• The above changes will also apply to adoption placements, excluding early access to flexible UPL.⁶

2. Superannuation

Taking effect from January 1, 2024:

• Superannuation will be enshrined in the FW Act as a National Employment Standard (NES) alongside entitlements such as annual leave and public holidays.
• The change will expressly require employers to make superannuation contributions.⁷
• The amendment will also provide employees, unions and the Fair Work Ombudsman with a right to pursue claims of underpayment or unpaid superannuation contributions in Federal Court⁸. This has not previously been possible.

3. Employee-authorised deduction

Taking effect from December 30:

• Employers and employees will be able to agree to deductions from the employee’s pay that can vary from time to time⁹, instead of being a fixed amount for each deduction.
• Authorised deductions to be made will still be required to be in writing and restricted to deductions that are not for the direct or indirect benefit of the employer.

4. Migrant worker protections

With effect from July 1, the amendments are:

• Migrant worker rights to receive the full benefit of entitlements under the FW Act will not be impacted by a breach of the Migration Act 1958 (Cth)¹⁰. This change will see migrant workers being explicitly entitled to the full benefit of the FW Act, without regard the migrant workers visa and right to work status.
• Breaches of the Migration Act 1958 (Cth) will still be subject to compliance action.

5. Workplace determination

Having taken effect from July 1, changes to the FW Act clarify how workplace determinations interact with enterprise agreements. An enterprise agreement will cease to be in effect when it is replaced by a workplace determination. ¹¹

6. Coal Mining Long Service Leave Scheme

From January 1, 2024, casual employees covered by the Coal Mining Long Service Scheme will be treated no less favourably when compared to permanent staff with regard to accrual, access and payment of long service leave. ¹²

COMMISSION PROVIDES CLARITY ON UNPAID PARENTAL LEAVE AND FLEXIBLE WORKING ARRANGEMENTS

Section 160 of the FW Act provides the Fair Work Commission (‘FWC’) with the ability to vary a Modern Award in order to remove ambiguity, uncertainty or to correct an error.

On May 26, the FWC released a statement identifying possible uncertainties around unpaid parental leave and flexible working arrangements. Parties with an interest were invited to respond to the statement by June 16, and both the Higher Education Industrial Association and the Australian Chamber of Commerce and Industry filed submissions to the FWC in support of the provisional view that certain variations needed to be made to address the uncertainties.

On June 30 the FWC confirmed the variation of Modern Awards accordingly.

Minor variations will come into effect from the above date. All 122 Modern Awards will be varied in order to remove uncertainty around unpaid parental leave and flexible working arrangements. While these variations may be minor, they could potentially have a major impact on business operations, making it important for members to understand what these variations mean.

Unpaid Parental Leave Variation

The FWC’s objective for the variations made to the Modern Awards was to ensure consistency with the National Employment Standards (‘NES’) and to remove any potential uncertainty about unpaid parental leave.

Under the NES, employees are entitled to 12 months of unpaid parental leave and can request an additional 12 months of leave. Business Chamber Queensland can assist you with any questions you may have regarding the NES and parental leave entitlements.

1. There are four Modern Awards that do not have an unpaid parental leave clause, and those Modern Awards do not refer back to the NES (unlike other Modern Awards). They are:

• Social, Community, Home Care and Disability Services Industry Award 2010
• Children’s Services Award 2010
• Fitness Industry Award 2020
• Aged Care Award 2010

From August 1, those awards will be varied with the following clause to be inserted:

'Parental leave and related entitlements are provided for in the NES.'

2. There are six Modern Awards that contain additional employee entitlements related to parental leave that supplement those in the NES. They are:

• Higher Education Industry (Academic Staff) Award 2020
• Higher Education (General Staff) Award 2020
• Airport Employees Award 2020
• Educational Services (Post-Secondary Education) Award 2020
• Fire Fighting Industry Award 2020
• State Government Agencies Award 2020

The above listed Modern Awards will be varied by inserting reference to the NES, whilst still retaining the supplementary entitlements.

3. 121 industry and occupational Modern Awards* – including the 10 previously mentioned, have, from August 1, a note inserted into their unpaid parental leave clause that states the following:

'Disputes about requests for extensions to unpaid parental leave may be dealt with under clause X – Dispute resolution and/or under section 76B of the Act.’

*Does not include the Victorian Local Government Award 2015 as it is a public sector Modern Award.

When a Modern Award refers to ‘the Act’, this is an abbreviation for the Fair Work Act 2009 (Cth). If the dispute cannot be resolved under the relevant Award, clause 76B of the Fair Work Act 2009 (Cth) provides guidance on how to resolve the dispute.

Flexible Working Arrangements Variation

The FWC has also removed a potential source of uncertainty pertaining to flexible working arrangements.

From August 1, all 122 Modern Awards – including the Victorian Local Government Award 2015 – have removed any original clauses relating to requests for flexible working arrangements and have replaced them with a new ‘Requests for Flexible Working Arrangements’ clause which refers to the NES.

A note has also been added that refers to the new dispute resolution jurisdiction under section 65B of the Fair Work Act 2009 (Cth).

An additional variation was made in all Modern Awards except for the following:

• Fast Food Industry Award 2020
• Hair and Beauty Industry Award 2020
• General Retail Industry Award 2020

Aside from these mentioned Awards, the additional variation was made to avoid any uncertainty about an employer’s obligations where a request for Time Off In Lieu ('TOIL’) is made in circumstances where section 65 also applies. The note that was added is as follows:

‘If an employee makes a request under section 65 of the Act for a change in working arrangements, the employer may refuse that request on reasonable business grounds (see section 65A(3) of the Act).’

FW Act section 65 refers to the request for flexible working arrangements and section 65A(3) refers to the refusal of the request.

By referencing section 65A(3), there is now clarity about an employer’s obligation when a request is
received. An employer may refuse the request only if:

• The request has been discussed with the employee; and
• They have genuinely tried to reach an agreement with the employee to accommodate the circumstances; and
• No agreement has been reached between the employer and employee; and
• The employer has considered the consequences for refusing the employee’s request; and
• The refusal is on reasonable business grounds.

For the TOIL clauses in the above referred to three Modern Awards, the term ‘additional provisions’ was removed from the original note as it was believed to create uncertainty.

Furthermore, all Modern Awards with variations will have their table of contents updated and any cross-referencing adjusted accordingly.

What's next?

The Determinations for all the affected Awards can be found on the FWC website as well as the FWC statement made in May 2023 and the decision to implement the variations made in June 2023.

Employers should review their relevant Modern Award/s from August 1, 2023 and ensure any documentation that references clauses from the Award/s such as policies are updated accordingly to reflect the correct referencing.

Employees should also review their relevant Award from 1 August 2023 to ensure they are referring to the correct clause when they have a concern.

NEW PRODUCT: REDUNDANCY LETTER TEMPLATE KIT

Business Chamber Queensland has developed a Redundancy Letter Template Kit (‘Kit’) to support employers who are facing changes to operational requirements which necessitate the review of their workforce, and the redundancy of position/s in their workplace.

Managing a redundancy process can be difficult for both the employer and employees who may be affected as a result of the redundancy of their position.

The Kit has been developed to assist employers to meet their obligations when it comes to the redundancy of positions, and the resulting termination of employment due to the redundancy.

The templates contained in their Kit are designed to be tailored to an employer’s specific situation and should be read in conjunction with the above referred to new Fact Sheet.

COST: The Kit is available for purchase for:

• $250.00 (inclusive of GST) for members; and
• $325.00 (inclusive of GST) for non-members.

Contact the team today to purchase a copy.

ARE YOU READY FOR THE WORKPLACE ROUND-UP?

From August the Workplace Advisory Services team is starting the Workplace round-up.

What does this mean?

Starting in August, on the fourth Thursday of each month (excluding December), the team will be hosting a free online Workplace Round-Up session for members only.

The aim of the Workplace Round-Up is to create an environment where anyone with staffing responsibilities – HR personnel, managers and supervisors of staff for example, can join Workplace Advisory Services team members to discuss issues of the moment, and matters to become familiar with.

The Workplace Round-Up is free, and only available to current, financial members. This is the benefit of Business Chamber Queensland membership.

Click below to join the Workplace Round-Up and invitation list.

HR HEALTH CHECK - ARE YOU COMPLIANT?

The employment of staff and staying across the many compliance requirements associated with this is complex and ever-changing.

Recruiting and retaining the right people for your business is essential for your business’s success. What employers also need to do is be across the recording keeping, documentation and legal requirements.

Business Chamber Queensland can help!

We are proud to announce the HR Health Check: Compliance Assessment is how we can assist you to understand your level of compliance with the main workplace relations considerations.

During the two-hour HR Health Check, a member of the Workplace Advisory Services team will sit with you and work through a range of compliance matters.

Health Check Cost:

• Members: $500 inclusive of GST
• Non Members: $650.00 inclusive of GST

For more information, and to download the HR Health Check: Compliance Assessment Health Check, please see here.

We are available to assist you

Business Chamber Queensland members with workplace services included in their membership, and who require further information and guidance after reading this article are encouraged to contact the Workplace Advisory Services Team on 1300 135 822 or via email advice@businesschamberqld.com.au 

The team is available and ready to assist.  

Other members and non-members can also access advice and assistance from the team, however a consultancy fee will apply.

Our advisors can help you with information about WorkCover claims, how to handle returning to work, case reviews and appeals processes, and more. We can also help you understand the steps in the process, where to find relevant information and who to speak to at different points along the way.    
  
Our service is available to all Queensland employers through this website and by calling  1300 365 855 and speaking with an advisor or emailing workcoverinfo@businesschamberqld.com.au
  
As part of Business Chamber Queensland’s free workers' compensation information service to Queensland employers, Business Chamber Queensland has made available free resources to assist employers who are preparing the return to work process for an employee.  Contact workcoverinfo@businesschamberqld.com.au for details.

¹Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Cth) Schedule 2 s 22, (inserting new wording into section 71A(4) into FW Act).

²Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Cth) Schedule 2 s 30 (inserting new wording into section 71A(2) into FW Act).
³Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Cth) Schedule 2 s 27, 28 (inserting new wording into section 71A(1) into FW Act).
⁴Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Cth) Schedule 2 s 26, 28 (repealing section 72 from the FW Act).
⁵Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Cth) Schedule 2 s 67 (repealing section 76(6) from the FW Act).
⁶Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Cth) Schedule 2 s 22, 24, 25 (updating wording of section 71(1)-(6), from the FW Act).
⁷Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Cth) Schedule 3 s 2 (inserting new section 116B into FW Act).
⁸Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Cth) Schedule 3 s 2 (inserting new section 116E into FW Act).
⁹Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Cth) Schedule 5 s 1 (inserting new subsection (1A) into section 324 into FW Act, and replacing s 324(2)(a) in the FW Act).

¹⁰Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Cth) Schedule 1 s 3 (inserting new section 40B into FW Act).
¹¹Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Cth) Schedule 4 s 6 (inserting new subsection (1A) into section 278 into FW Act).
¹²Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Cth) explanatory Memorandum page 23 paragraph 125, Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Cth) Schedule 6 (amending Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) and Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 (Cth)).