The Right to Disconnect Bill and Protecting Worker Entitlements Bill have been introduced in Parliament over the past fortnight and may impact the way employers run their businesses. It is important to note that these proposed changes to the Fair Work Act 2009 (Cth) (the “Act”) may change through the discussions held on its way to becoming formalised.

PROPOSED CHANGES

The first three changes, if passed, will be made to the NES and cannot be displaced by any Award, Enterprise Agreement (EA) or employment contract, regardless of the salary being offered.

1. Right to Disconnect

A right to disconnect from work prevents an employer from contacting an employee outside of hours of work (including periods of leave). This would mean that an employee would be entitled to not read or respond to any form of communication outside hours of work, which may include emails, telephone calls or messages.

The only exceptions would be when there is an emergency, a genuine welfare matter or when an employee is already receiving an availability allowance for that period.

2. Unpaid Parental Leave

The unpaid parental leave provisions in the Act have been proposed to be amended to provide employees better access to unpaid parental leave through the following changes:

• Flexible unpaid parental leave increased from 30 days to 100 days and can be taken from six weeks prior to birth/place (instead of after birth/placement);
• Employees may start unpaid parental leave at any time in the 24 months following the birth/adoption instead of no later than the date of birth of child;
• Removal of the six-week limit for concurrent unpaid parental leave for employee couples;
• For employee couples, the extension of unpaid parental leave will no longer consider the amount of leave taken by the other parent in the couple;

With regards to paid parental leave, please note that there are some changes that will be coming into effect on 1 July 2023. Please see here for further information on these changes.

3. Superannuation

This proposal to insert an entitlement to superannuation contributions into the NES does not introduce additional obligations for employers but employers should be aware that if this insertion does happen, it means that any failure to pay superannuation would expose employers to claims for civil penalties for breach of the Act itself.

4. Protection for Migrant Worker

An express clarification has been proposed to confirm that breaches of the Migration Act 1958 (Cth) will have no effect on employment contracts. This means that even if an employee contravenes the Migration Act 1958 (Cth) by breaching a visa condition (among other contraventions) they are still entitled to the protections provided by the Act.

5. Interaction between EAs and Workplace Determinations

The new Bills propose to confirm that any EA covering an employee will cease to apply when a workplace determination comes into operation.

6. Employee authorised deductions

The Bills propose to make it easier to run employee-authorised deductions by allowing for changes in the deduction amount without a new written authority.

However, please note that authorised deductions cannot be made if it benefits the employer directly or indirectly, even if the deduction generally benefits the employee.

7. Coal mining LSL

The proposed changes aim to ensure that casual coal mining employees are not treated less favourably by their permanent counterparts through the following amendments:

• Long service leave payments for casual employees will include casual loading. As such, when casual employees take long service leave, the amount they are entitled to receive will include casual loading.
• When calculating service for the purposes of long service leave accrual, weeks not worked by a casual employee due to the specific roster pattern will still be counted as service.

SUMMARY

The proposed changes, if passed, may impact on industrial and workplace relations matters going forward, which in turn will impact businesses. Business Solutions Hub will continuously monitor developments and update employers as necessary.

Now is the time to start considering your policies, procedures, employment contracts and future Enterprise Agreements which will need to incorporate the above changes, when they are implemented.

Contact the team at info@businesssolutionshub.com.au to discuss your operational requirements, current procedures and workplace documentation in place, and a risk mitigation assessment going forward.