Fair Work Act changes: Protecting Worker Entitlements

Banner illustration with text reading, 'Protecting Worker Entitlements'Published 30 June 2023 | Updated 24 July 2023

As part of the Australian Government’s new Protecting Worker Entitlements laws, there are changes to the Fair Work Act.

Some changes start now, while others start later this year or next year.

On this page:

Overview

On 22 June 2023, the Australian Government passed the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023. The legislation introduces changes to the Fair Work Act.

The changes have different start dates. Some take effect now, while others start later this year or in 2024.

Read on for more information about each change and when it starts.

Key changes

Right to superannuation in the National Employment Standards

These changes take effect on 1 January 2024.

From 1 January 2024, the National Employment Standards (NES) will include a right to superannuation contributions. This means that unpaid or underpaid superannuation can be enforced under the Fair Work Act by more employees (as well as by an employee organisation or us).

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) will continue 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.

For changes starting later this year or next year, we’ll update our website closer to the time. In the meantime, download the Department of Employment and Workplace Relations' fact sheet Superannuation in the National Employment Standards.

Changes to unpaid parental leave

These changes take effect on 1 July 2023.

From 1 July 2023, the Fair Work Act will include 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. Learn more at Changes to the paid parental leave scheme.

Employees taking unpaid parental leave will be able to 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 will also be able to access their flexible unpaid parental leave up to 6 weeks before the expected date of birth of their child.

Employees will no longer be 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 will be able to 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 now updated our Parental leave section and fact sheet  to reflect the changes.

Interaction between enterprise agreements and workplace determinations

These changes take 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.

For more information, download the Department of Employment and Workplace Relations' fact sheet Workplace determinations.

Authorised employee deductions

These changes take effect on 30 December 2023.

From 30 December 2023, employees will be able to authorise salary deductions made by their employer that are:

  • recurring
  • for amounts that vary from time to time.

This means an employee can make a single written authorisation that allows their employer to deduct amounts from their salary even where the deduction amount may vary from year to year. It can be withdrawn by the employee in writing at any time.

At the moment, a new written authorisation between an employee and employer has to be made if a deduction amount changes.

Employees can also continue to allow deductions for specific amounts only. These types of deductions need to be:

  • principally for the employee’s benefit
  • in writing.

For changes starting later this year or next year, we’ll update our website closer to the time. In the meantime, download the Department of Employment and Workplace Relations' fact sheet, Employee authorised deductions.

Protections for migrant workers

This change takes 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 now updated our Visa holders and migrants section and fact sheet  to reflect the changes.

Casual employees in the black coal mining industry

These changes take effect on the earlier of a day fixed by Proclamation and 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.

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:

We’re updating our information and resources

We’ve updated our website to reflect the changes that started on 1 July 2023. We're still in the process of updating some of our other education tools and resources.

For changes starting later this year or next year, we’ll update our website closer to the time.

Subscribe to email updates to be alerted when our information and tools are updated.

In the meantime, you can read fact sheets about the changes from the Department of Employment and Workplace Relations — Protecting Worker Entitlements.

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