News and Insights

Following the decision of a Full Bench of the Fair Work Commission in respect of the Family and Domestic Violence Leave Review 2021, the Fair Work Act 2009 (the Act) has been amended to expand the definition of Family domestic violence (FDV) and broaden employee entitlements to take personal leave as a consequence of FDV (FDV leave).

Previously, employees were entitled to take a maximum of 5 unpaid days of FDV leave per year. However, beginning 1 February 2023, full-time, part-time, and casual employees of ‘non-small businesses’ (i.e employers with 15 or more employees) are entitled to 10 days of paid FDV leave each year, with the entitlement extending to employees of ‘small businesses’ as of 1 August 2023.  For more information see here (link to new FDV article).

Further to the above, on 29 March 2023, the Federal Government introduced into Parliament the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023.

This Bill has not yet been passed but it seeks to make a number of changes to the law protecting worker entitlements, particularly under the Act and the National Employment Standards (NES). Briefly, those changes are discussed below:

1. The Bill proposes to provide employees with increased and more flexible access to unpaid parental leave by increasing the number of unpaid parental leave days and the times at which an employee can take unpaid parental leave. Employees will be able to access their unpaid parental leave up to 6 weeks before the expected date of their child and they will be able to commence the leave at any time during the 24 months following the birth of their child. In addition, couples who are employed by the same employer will be able to take the leave at the same time, and both can take up to 12 months leave.
2. A right to superannuation will be inserted into the NES requiring employers to make contributions to their employee’s superannuation fund.
3. There will be an expansion to the types of deductions that an employee may authorise their employer to deduct from payments due to them by their employer. The change provides that where an employee authorises multiple or ongoing deductions from payments which they are entitled to, the authorisation of those deductions must specify whether they are for a particular amount or whether they can be varied from time to time. As an additional safeguard for employees, there will also be an additional ‘reasonableness’ requirement where an employer seeks to make deduction from an employee’s pay that is directly or indirectly for the benefit of the employer.
4. The introduction of safeguards for rights of migrant workers working within Australia by ensuring that they are entitled to the benefits under the Fair Work Act regardless of their migration status.
5. The introduction of provisions regarding workplace determinations, being that once a workplace determination has come into operation, an earlier enterprise agreement will cease to apply.
6. Proposed amendments to the Coal Mining Industry (Long Service Leave) Administration Act 1992 regarding calculations of long service leave entitlements for casual mineworkers in the black coal mining industry.

In addition, and due to the Workplace Gender Equality Amendment (Closing the Gender Pay Gap) Act 2023 (WGEA Bill) being passed by Federal Parliament in March 2023, employers (with over 100 employees) will also now need to report their gender pay gaps to the Workplace Gender Equality Agency (WGEA).   CEOs will also be required to provide the governing body of the relevant employer (if any) with a report prepared by WGEA setting out how the employer’s organisation performs in terms of general pay equality in their relevant industry. Furthermore, any sexual harassment which an employer becomes aware of will now need to be reported to WGEA.

The above changes are aimed at increasing the rights of, and improving the protections for, employees.  We also remind employers that changes made to the Act in late 2022 mean that employment agreements should no longer include clauses aimed at making employees keep their remuneration and related conditions secret.  Employers need to be aware of these changes and ensure that their employment contracts and HR policies are updated to reflect the changes, especially in respect of authorised deductions and parental leave provisions.

Wisewould Mahony’s Employment & Workplace Relations team are happy to answer any queries  in relation to these changes and to provide a fixed fee review of employment contracts and policies.