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This is a Bill, not an Act. For current law, see the Acts databases.
2022-2023
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fair Work Legislation Amendment
(Protecting Worker Entitlements) Bill
2023
No. , 2023
(Employment and Workplace Relations)
A Bill for an Act to amend the Fair Work Act 2009
and the law relating to long service leave in the coal
mining industry, and for related purposes
No. , 2023
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 3
Schedule 1--Protection for migrant workers
4
Fair Work Act 2009
4
Schedule 2--Unpaid parental leave
5
Fair Work Act 2009
5
Schedule 3--Superannuation
17
Part 1--National Employment Standards--superannuation
contributions
17
Fair Work Act 2009
17
Part 2--Other amendments
20
Fair Work Act 2009
20
Schedule 4--Workplace determinations
21
Fair Work Act 2009
21
Schedule 5--Employee authorised deductions
22
Fair Work Act 2009
22
Schedule 6--Coal mining long service leave scheme
23
Coal Mining Industry (Long Service Leave) Administration Act 1992
23
Coal Mining Industry (Long Service Leave) Payroll Levy Collection
Act 1992
27
Schedule 7--Technical corrections
29
Fair Work Act 2009
29
Schedule 8--Application and transitional provisions
30
Fair Work Act 2009
30
No. , 2023
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
1
A Bill for an Act to amend the Fair Work Act 2009
1
and the law relating to long service leave in the coal
2
mining industry, and for related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act is the
Fair Work Legislation Amendment (Protecting
6
Worker Entitlements) Act 2023
.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
2
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
No. , 2023
1
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
The day after this Act receives the Royal
Assent.
3. Schedule 2
The later of:
(a) 1 July 2023; and
(b) the day after this Act receives the Royal
Assent.
4. Schedule 3,
Part 1
The first 1 January, 1 April, 1 July or
1 October to occur after the end of the
period of 6 months beginning on the day this
Act receives the Royal Assent.
5. Schedule 3,
Part 2
The day after this Act receives the Royal
Assent.
6. Schedule 4
The day after this Act receives the Royal
Assent.
7. Schedule 5
The day after the end of the period of 6
months beginning on the day this Act
receives the Royal Assent.
8. Schedule 6
The earlier of:
(a) a single day to be fixed by Proclamation;
and
(b) the first 1 January, 1 April, 1 July or
1 October to occur after the end of the
period of 6 months beginning on the day
this Act receives the Royal Assent.
9. Schedules 7
and 8
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
No. , 2023
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
3
(2) Any information in column 3 of the table is not part of this Act.
1
Information may be inserted in this column, or information in it
2
may be edited, in any published version of this Act.
3
3 Schedules
4
Legislation that is specified in a Schedule to this Act is amended or
5
repealed as set out in the applicable items in the Schedule
6
concerned, and any other item in a Schedule to this Act has effect
7
according to its terms.
8
Schedule 1
Protection for migrant workers
4
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
No. , 2023
Schedule 1--Protection for migrant workers
1
2
Fair Work Act 2009
3
1 At the end of Division 4 of Part 1-3
4
Add:
5
40B Effect of the Migration Act 1958
6
For the purposes of this Act, any effect of the
Migration Act 1958
,
7
or an instrument made under that Act, on the validity of a contract
8
of employment, or the validity of a contract for services, is to be
9
disregarded.
10
Unpaid parental leave
Schedule 2
No. , 2023
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
5
Schedule 2--Unpaid parental leave
1
2
Fair Work Act 2009
3
1 Section 12 (definition of concurrent leave)
4
Repeal the definition.
5
2 Section 12 (definition of flexible unpaid parental leave)
6
Omit "subsection 72A(1)", substitute "subsections 72A(1) and (2A)".
7
3 Section 12 (definition of unpaid special maternity leave)
8
Repeal the definition.
9
4 Section 12
10
Insert:
11
unpaid special parental leave
means unpaid special parental
leave
12
to which a national system employee is entitled under section 80.
13
5 Subparagraph 67(2)(b)(ii)
14
Omit "child; or", substitute "child;".
15
6 Subparagraph 67(2)(b)(iii)
16
Repeal the subparagraph.
17
7 Subsection 67(3)
18
Repeal the subsection, substitute:
19
Date at which employee must have completed 12 months of service
20
(3) For the purposes of subsections (1) and (2), the date that applies is:
21
(a) if the leave is:
22
(i) birth-related leave starting before the birth of the child;
23
or
24
(ii) unpaid special parental
leave;
25
the expected date of birth of the child; or
26
Schedule 2
Unpaid parental leave
6
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
No. , 2023
(b) in any other case--the date on which the employee's period
1
of leave is to start.
2
8 Paragraph 67(4)(b)
3
Omit "maternity leave", substitute "parental
leave".
4
9 Paragraph 69(1)(b)
5
Omit "his or her", substitute "the employee's".
6
10 Section 71 (heading)
7
Omit "
--other than for members of an employee couple who each
8
intend to take leave
".
9
11 Subsection 71(1)
10
Repeal the subsection, substitute:
11
Application of this section
12
(1) This section applies to an employee who intends to take unpaid
13
parental leave.
14
12 Subsection 71(2) (note 1)
15
Omit "he or she", substitute "the employee".
16
13 Before subsection 71(3)
17
Insert:
18
When birth-related leave must start and end
19
14 Subsection 71(3)
20
Omit "for a female employee", substitute "for an employee".
21
15 At the end of paragraph 71(3)(b)
22
Add "or".
23
16 After paragraph 71(3)(b)
24
Insert:
25
Unpaid parental leave
Schedule 2
No. , 2023
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
7
(c) during the 24-month period starting on the date of birth of the
1
child;
2
17 Subsection 71(3)
3
Omit "must not start later than the date of birth of the child", substitute
4
"must end during the 24-month period starting on the date of birth of
5
the child".
6
18 Subsection 71(3) (note 1)
7
Omit "she", substitute "the employee".
8
19 Subsection 71(3) (paragraph (b) of note 1)
9
Omit "maternity leave", substitute "parental
leave".
10
20 Subsection 71(3) (note 2)
11
Omit "her", substitute "the employee's".
12
21 Subsection 71(3) (note 2)
13
Omit "she", substitute "the employee".
14
22 Subsection 71(4)
15
Omit "must start on the date of birth of the child", substitute "must start
16
and end during the 24-month period starting on the date of birth of the
17
child".
18
23 Subsection 71(5) (at the end of the heading)
19
Add "
and end
".
20
24 Subsection 71(5)
21
Omit "must start on the day of placement of the child", substitute "must
22
start and end during the 24-month period starting on the day of
23
placement of the child".
24
25 Subsection 71(6)
25
Repeal the subsection, substitute:
26
Schedule 2
Unpaid parental leave
8
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
No. , 2023
Limit on amount of leave
1
(6) The employee may take unpaid parental leave under this section
2
only if the period of leave is no longer than 12 months, less the
3
employee's notional flexible period.
4
Note:
An employee is entitled under section 76 to request an extension of
5
the period of leave beyond the employee's available parental leave
6
period. However, the period of leave may not be extended beyond 24
7
months after the date of birth or day of placement of the child (see
8
subsection 76(7)).
9
26 Section 72
10
Repeal the section.
11
27 Subsection 72A(1) (heading)
12
Omit "
up to 30 days'
".
13
28 Subsection 72A(1)
14
Omit "30 days", substitute "100 days (or, if a higher number of days is
15
prescribed by the regulations, that higher number of days)".
16
29 Subsection 72A(2)
17
After "leave", insert "under subsection (1)".
18
30 After subsection 72A(2)
19
Insert:
20
Taking leave that starts up to 6 weeks before the expected date of
21
birth of the child
22
(2A) A pregnant employee may take unpaid parental leave (
flexible
23
unpaid parental leave
) during the period that starts 6 weeks before
24
the expected date of birth of the child if the requirements of this
25
section are satisfied in relation to the leave.
26
Note 1:
The flexible unpaid parental leave is unpaid parental leave and so
27
comes out of the employee's entitlement to 12 months of unpaid
28
parental leave under section 70.
29
Note 2:
The number of days of flexible unpaid parental leave that the
30
employee takes must not be more than the number of flexible days
31
Unpaid parental leave
Schedule 2
No. , 2023
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
9
notified to the employer under subsection 74(3C) (subject to any
1
agreement under subsection 74(3D)).
2
(2B) Flexible unpaid parental leave under subsection (2A) is available in
3
full to pregnant part-time employees and pregnant casual
4
employees.
5
(2C) The amount of flexible unpaid parental leave to which an employee
6
is entitled under subsection (1) in relation to the child is reduced by
7
the number of days of flexible unpaid parental leave taken by the
8
employee under subsection (2A) in relation to the child.
9
31 At the end of subsection 72A(6)
10
Add "For this purpose, the employee's flexible days are the flexible
11
days notified to the employer under subsection 74(3C) (subject to any
12
agreement under subsection 74(3D)).".
13
32 Subsections 72A(8) and (9)
14
Repeal the subsections.
15
33 Subsection 72A(11) (heading)
16
Omit "
sections 71 and 72
", substitute "
section 71
".
17
34 Subsection 72A(11)
18
Omit "sections 71 and 72", substitute "section 71".
19
35 At the end of section 72A
20
Add:
21
(12) Despite anything in subsection (11), flexible unpaid parental leave
22
cannot be used to break up a period of unpaid parental leave taken
23
under section 71.
24
36 Subsection 73(1)
25
Omit "she", substitute "the employee".
26
37 Paragraph 73(1)(b)
27
Omit "her", substitute "the employee's".
28
Schedule 2
Unpaid parental leave
10
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
No. , 2023
38 Subsection 73(2)
1
After "take a period of unpaid parental leave", insert "other than
2
flexible unpaid parental leave".
3
39 Subparagraph 73(2)(c)(i)
4
Omit "her", substitute "the employee's".
5
40 Subsection 73(3) (note)
6
Repeal the note.
7
41 Subsection 73(4)
8
Omit "sections 71 and 72", substitute "section 71".
9
42 Subsection 74(1)
10
Omit "his or her", substitute "the employee's".
11
43 Subsection 74(1)
12
Omit "or 72".
13
44 Subsection 74(1)
14
Before "by the employee", insert "or both,".
15
45 Subsection 74(2)
16
Repeal the subsection, substitute:
17
Notice requirements
18
(2) The employee must give the notice to the employer:
19
(a) at least 10 weeks before starting any of the leave covered by
20
the notice; or
21
(b) if that is not practicable, and:
22
(i) the first or only period of leave covered by the notice is
23
leave to be taken under section 71; or
24
(ii) any of the leave covered by the notice starts before the
25
child's date of birth or expected date of birth;
26
as soon as practicable (which may be a time after any of the
27
leave covered by the notice has started).
28
Unpaid parental leave
Schedule 2
No. , 2023
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
11
(2A) However, if the first or only period of leave covered by the notice
1
is leave to be taken under section 72A, the notice may be given at
2
any later time if the employer agrees.
3
46 Subsection 74(3)
4
Omit "The notice", substitute "If any of the leave covered by the notice
5
is to be taken under section 71, the notice".
6
47 Subsection 74(3)
7
After "leave", insert "to be taken under section 71".
8
48 Subsections 74(3A) and (3B)
9
Repeal the subsections.
10
49 Subsection 74(3C)
11
Omit "The notice", substitute "If any of the leave covered by the notice
12
is to be taken under section 72A, the notice".
13
50 Paragraph 74(3D)(b)
14
Omit "30", substitute "100 (or, if a higher number of days is prescribed
15
by regulations made for the purposes of subsection 72A(1), that higher
16
number)".
17
51 Subsection 74(4) (heading)
18
Omit "
or 72
".
19
52 Subsection 74(4)
20
Omit "the leave is", substitute "any of the leave covered by the notice
21
is".
22
53 Subsection 74(4)
23
Omit "or 72".
24
54 Paragraphs 74(4)(a) and (b)
25
After "leave", insert "to be taken under section 71".
26
55 Subsection 74(4A)
27
Repeal the subsection.
28
Schedule 2
Unpaid parental leave
12
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
No. , 2023
56 At the end of subsection 74(4B)
1
Add:
2
Note:
Whether or not it is practicable for the employee to give notice at least
3
4 weeks before that day will depend on the employee's personal and
4
family circumstances. For example, it may not be practicable for the
5
employee to give notice at least 4 weeks before that day where the
6
employee experiences a health issue, a pregnancy complication or an
7
unexpected change in the employee's child care arrangements.
8
57 Subsection 74(5)
9
Omit "his or her", substitute "the employee's".
10
58 Subsection 74(7)
11
Omit "or 72".
12
59 Paragraph 75(1)(a)
13
Omit "or 72".
14
60 Paragraphs 75(2)(a) and (c)
15
Repeal the paragraphs.
16
61 Paragraph 75(2)(d)
17
Omit "74(3A) or (3B)", substitute "74(2) or (2A)".
18
62 Subsection 75(3)
19
After "unpaid parental leave", insert "taken under section 71".
20
63 Subsection 75(3)
21
Omit "his or her", substitute "the employee's".
22
64 Subsection 76(1)
23
Omit "or 72".
24
65 Subsection 76(1)
25
Omit "his or her" (wherever occurring), substitute "the employee's".
26
66 At the end of subsection 76(2)
27
Add:
28
Unpaid parental leave
Schedule 2
No. , 2023
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
13
Note:
The request must be made when the employee is taking unpaid
1
parental leave under section 71.
2
67 Subsection 76(6)
3
Repeal the subsection.
4
68 Section 77
5
Omit "he or she", substitute "the employee".
6
69 Subsection 77A(4)
7
Omit "his or her" (wherever occurring), substitute "the employee's".
8
70 Subsection 78(3)(b)
9
Omit "a female employee", substitute "an employee".
10
71 Subsection 78A(1)
11
Omit "his or her", substitute "the employee's".
12
72 Subsection 78A(2) (note)
13
Omit "sections 71 and 72", substitute "section 71".
14
73 Subsection 79(1)
15
Omit "while he or she", substitute "while the employee".
16
74 Subsection 79(1) (note)
17
Omit "he or she", substitute "the employee".
18
75 Subsection 79A(1)
19
Omit "his or her", substitute "the employee's".
20
76 Subsection 79A(1)
21
Omit "he or she", substitute "the employee".
22
77 Paragraph 79A(2)(a)
23
Omit "his or her", substitute "the employee's".
24
78 Subparagraph 79A(2)(c)(i)
25
Omit "he or she", substitute "the employee".
26
Schedule 2
Unpaid parental leave
14
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
No. , 2023
79 Paragraph 79B(b)
1
Omit "his or her", substitute "the employee's".
2
80 Section 80 (heading)
3
Omit "
maternity leave
", substitute "
parental leave
".
4
81 Subsection 80(1) (heading)
5
Omit "
maternity leave
", substitute "
parental leave
".
6
82 Subsection 80(1)
7
Omit "maternity leave" (first occurring), substitute "parental leave".
8
83 Subsection 80(1)
9
Omit "A female employee", substitute "An employee".
10
84 Subsection 80(1)
11
Omit "she" (first occurring), substitute "the employee".
12
85 Paragraph 80(1)(a)
13
Omit "she", substitute "the employee is pregnant and".
14
86 Subparagraph 80(1)(b)(i)
15
Omit "she", substitute "the employee".
16
87 Subsection 80(1) (note 1A)
17
Omit "female".
18
88 Subsection 80(1) (note 2)
19
Omit "a female employee", substitute "an employee".
20
89 Subsection 80(1) (note 2)
21
Omit "she", substitute "the employee".
22
90 Subsection 80(1) (note 2)
23
Omit "maternity leave", substitute "parental leave".
24
Unpaid parental leave
Schedule 2
No. , 2023
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
15
91 Subsection 80(2)
1
Omit "her", substitute "the employee's".
2
92 Subsection 80(2)
3
Omit "maternity leave", substitute "parental leave".
4
93 Subsection 80(4)
5
Omit "her", substitute "the employee's".
6
94 Subsection 80(4)
7
Omit "maternity leave", substitute "parental leave".
8
95 Subsection 80(6)
9
Omit "maternity leave", substitute "parental leave".
10
96 At the end of section 80 (before the note)
11
Add:
12
(7) Subdivision B does not apply to unpaid special parental leave.
13
97 Subsection 81(1)
14
Omit "she gives her", substitute "the employee gives the employee's".
15
98 Subsection 81(1)
16
Omit "that she", substitute "that the employee".
17
99 Subsection 81(1)
18
Omit "her" (second occurring), substitute "the employee".
19
100 Subsection 81(1)
20
Omit "her" (third and fourth occurring), substitute "the employee's".
21
101 Subsection 81(4)
22
Omit "she" (wherever occurring), substitute "the employee".
23
102 Subsections 85(4) and (6)
24
Omit "his or her", substitute "the employee's".
25
Schedule 2
Unpaid parental leave
16
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
No. , 2023
103 Section 97 (note 2)
1
Omit "a female", substitute "an".
2
104 Section 97 (note 2)
3
Omit "she", substitute "the employee".
4
105 Section 97 (note 2)
5
Omit "maternity leave", substitute "parental leave".
6
106 Subsection 745(1) (note 1)
7
Omit "1" (first occurring).
8
107 Subsection 745(1) (note 2)
9
Repeal the note.
10
108 Subsections 772(1) and (3)
11
Omit "maternity leave or other" (wherever occurring).
12
Superannuation
Schedule 3
National Employment Standards--superannuation contributions
Part 1
No. , 2023
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
17
Schedule 3--Superannuation
1
Part 1--National Employment Standards--
2
superannuation contributions
3
Fair Work Act 2009
4
1 After paragraph 61(2)(h)
5
Insert:
6
(ha) superannuation contributions (Division 10A);
7
2 After Division 10 of Part 2-2
8
Insert:
9
Division 10A--Superannuation contributions
10
116A Division does not apply to certain employees or employers in
11
referring States
12
This Division does not apply in relation to:
13
(a) an employee who is a national system employee only
14
because of section 30C or 30M (which extend the meaning of
15
national system employee
); or
16
(b) an employer that is a national system employer only because
17
of section 30D or 30N (which extend the meaning of
18
national system employer
).
19
116B Employer's obligation to make superannuation contributions
20
An employer must make contributions to a superannuation fund for
21
the benefit of an employee so as to avoid liability to pay
22
superannuation guarantee charge under the
Superannuation
23
Guarantee Charge Act 1992
in relation to the employee.
24
Schedule 3
Superannuation
Part 1
National Employment Standards--superannuation contributions
18
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
No. , 2023
116C Reduction of employer's liability to the extent of
1
superannuation charge payments
2
The obligation to make contributions for an employee under
3
section 116B does not apply to an employer to the extent that:
4
(a) the employer has made a charge payment (within the
5
meaning of section 63A of the
Superannuation Guarantee
6
(Administration) Act 1992
) in respect of the employee under
7
Part 8 of that Act; and
8
(b) the employee is a benefiting employee (within the meaning
9
of that Part); and
10
(c) the Commissioner of Taxation is required to pay, or
11
otherwise deal with, a shortfall component (within the
12
meaning of that Part) for the benefit of the employee under
13
that Part.
14
116D Preventing multiple actions
15
Scope
16
(1) This section applies if:
17
(a) an employer has contravened, or allegedly contravened, a
18
civil remedy provision that relates to a contravention of this
19
Division; and
20
(b) the contravention, or alleged contravention, relates wholly or
21
partly to an employee; and
22
(c) the employee or another person referred to in an item in
23
column 2 of the table in subsection 539(2) would be entitled
24
to apply for an order under Division 2 of Part 4-1 in relation
25
to the contravention, or alleged contravention.
26
No application for orders in certain circumstances
27
(2) An application for such an order may not be made if:
28
(a) the Commissioner of Taxation has commenced proceedings
29
against the employer to recover an amount of superannuation
30
guarantee charge; and
31
(b) either:
32
(i) the Commissioner has obtained an order for recovery of
33
the charge; or
34
Superannuation
Schedule 3
National Employment Standards--superannuation contributions
Part 1
No. , 2023
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
19
(ii) if the proceedings have not been finally disposed of--
1
the Commissioner has not discontinued the proceedings;
2
and
3
(c) the employer's superannuation guarantee shortfall in respect
4
of which the charge is imposed includes an individual
5
superannuation guarantee shortfall for the employee.
6
(3) Terms (apart from employee and employer) used in this section
7
that are defined in the
Superannuation Guarantee (Administration)
8
Act 1992
have the same meaning in this section as they have in that
9
Act.
10
116E Orders for compensation
11
(1) This section applies if a court makes an order under section 545
12
awarding compensation to an employee for a contravention of a
13
civil remedy provision that relates to a contravention of this
14
Division.
15
(2) The court must have regard to the principle that any component of
16
the compensation payable on account of unpaid superannuation
17
contributions should usually be paid to a superannuation fund for
18
the benefit of the employee.
19
Schedule 3
Superannuation
Part 2
Other amendments
20
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
No. , 2023
Part 2--Other amendments
1
Fair Work Act 2009
2
3 Section 149B
3
Before "A modern award", insert "(1)".
4
4 At the end of section 149B
5
Add:
6
Reduction of employer's liability to the extent of superannuation
7
charge payments
8
(2) The obligation of an employer to make contributions for the benefit
9
of an employee under a term mentioned in subsection (1) does not
10
apply to the extent that:
11
(a) the employer has made a charge payment (within the
12
meaning of section 63A of the
Superannuation Guarantee
13
(Administration) Act 1992
) in respect of the employee under
14
Part 8 of that Act; and
15
(b) the employee is a benefiting employee (within the meaning
16
of that Part); and
17
(c) the Commissioner of Taxation is required to pay, or
18
otherwise deal with, a shortfall component (within the
19
meaning of that Part) for the benefit of the employee under
20
that Part.
21
Workplace determinations
Schedule 4
No. , 2023
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
21
Schedule 4--Workplace determinations
1
2
Fair Work Act 2009
3
1 Paragraph 54(2)(b)
4
After "section 58", insert "or subsection 278(1A)".
5
2 Subsection 54(2) (note)
6
Omit "Section 58 deals with", substitute "Section 58 and
7
subsection 278(1A) deal with".
8
3 Paragraph 276(2)(b)
9
Omit "section 278", substitute "subsection 278(1) or (2)".
10
4 Paragraph 276(2)(b)
11
Omit "agreement", substitute "determination".
12
5 Subsection 276(2) (note)
13
Omit "Section 278 deals with", substitute "Subsections 278(1) and (2)
14
deal with".
15
6 Before subsection 278(1)
16
Insert:
17
Interaction with an earlier enterprise agreement
18
(1A) If:
19
(a) an enterprise agreement applies to an employee in relation to
20
particular employment; and
21
(b) a workplace determination that covers the employee in
22
relation to the same employment comes into operation;
23
the enterprise agreement ceases to apply to the employee in
24
relation to that employment, and can never so apply again.
25
7 Subsection 278(1) (heading)
26
Omit "
an enterprise agreement
", substitute "
a later enterprise
27
agreement
".
28
Schedule 5
Employee authorised deductions
22
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
No. , 2023
Schedule 5--Employee authorised deductions
1
2
Fair Work Act 2009
3
1 After subsection 324(1)
4
Insert:
5
(1A) However, an employer must not deduct an amount under
6
paragraph (1)(a) if the deduction is:
7
(a) directly or indirectly for the benefit of the employer or a
8
party related to the employer; and
9
(b) for an amount that may be varied from time to time;
10
unless the deduction, if it were a deduction referred to in
11
subsection 326(1), would be a deduction made in circumstances
12
prescribed under subsection 326(2) to be reasonable.
13
2 Paragraph 324(2)(a)
14
Repeal the paragraph, substitute:
15
(a) must specify:
16
(i) for a single deduction--the amount of the deduction; or
17
(ii) for multiple or ongoing deductions--whether the
18
deductions are for a specified amount or amounts, or for
19
amounts as varied from time to time; and
20
(aa) must include any information prescribed by the regulations;
21
and
22
3 Subsection 324(3)
23
Omit "the amount of the deduction", substitute "a specified amount of a
24
deduction".
25
Coal mining long service leave scheme
Schedule 6
No. , 2023
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
23
Schedule 6--Coal mining long service leave
1
scheme
2
3
Coal Mining Industry (Long Service Leave) Administration
4
Act 1992
5
1 Subsection 4(1)
6
Insert:
7
quarter
means a period of 3 months beginning on 1 July,
8
1 October, 1 January or 1 April.
9
2 After subsection 39A(3)
10
Insert:
11
(3A) If:
12
(a) subsection (3) applies in relation to a casual employee for a
13
week (the
initial week
); and
14
(b) apart from this subsection, subsection (3) does not apply in
15
relation to that employee for the next week (the
relevant
16
week
) after the initial week; and
17
(c) the relevant week is not otherwise a period of qualifying
18
service for that employee; and
19
(d) subsection (3) applies in relation to that employee for the
20
next week after the relevant week;
21
then, for the purposes of subsection (2), that employee is taken to
22
have been an eligible employee for the whole of the relevant week
23
in the capacity of a casual employee.
24
Note:
The effect of this subsection is that the relevant week will be a period
25
of qualifying service for that employee.
26
(3B) If:
27
(a) subsection (3) applies in relation to a casual employee for a
28
week beginning in a quarter; and
29
(b) apart from this subsection, there are one or more later weeks
30
beginning in that quarter that are not a period of qualifying
31
service for that employee;
32
Schedule 6
Coal mining long service leave scheme
24
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
No. , 2023
then, for the purposes of subsection (2), rules made under
1
subsection (3C) may set out the circumstances in which that
2
employee is taken to have been an eligible employee for the whole
3
of one or more of those later weeks in the capacity of a casual
4
employee.
5
Note:
The effect of this subsection is that, if any rules are made, the one or
6
more of those later weeks will be periods of qualifying service for that
7
employee.
8
(3C) The Minister may, by legislative instrument, make rules for the
9
purposes of subsection (3B).
10
3 Subsection 39AA(2) (subparagraph (c)(i) of the definition of
11
working hours)
12
Repeal the subparagraph, substitute:
13
(i) the number of hours for the week worked out under
14
whichever of subsections (3) and (4) is applicable;
15
4 At the end of section 39AA
16
Add:
17
Employee is a casual employee for all weeks beginning in a
18
quarter
19
(3) If all weeks beginning in a quarter are applicable weeks for the
20
employee, the number of hours for each of those weeks for the
21
purposes of subparagraph (c)(i) of the definition of
working hours
22
in subsection (2) is the result of dividing:
23
(a) the total number of hours worked by the employee as a
24
casual employee for all of those weeks; by
25
(b) the number of weeks beginning in the quarter.
26
Employee is a casual employee for some but not all weeks
27
beginning in a quarter
28
(4) If some but not all weeks beginning in a quarter are applicable
29
weeks for the employee, the number of hours for each of those
30
applicable weeks for the purposes of subparagraph (c)(i) of the
31
definition of
working hours
in subsection (2) is the result of
32
dividing:
33
Coal mining long service leave scheme
Schedule 6
No. , 2023
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
25
(a) the total number of hours worked by the employee as a
1
casual employee for all of those applicable weeks; by
2
(b) the number of applicable weeks beginning in the quarter.
3
What is an applicable week?
4
(5) A week beginning in a quarter is an
applicable week
for an
5
employee if:
6
(a) the employee is a casual employee at any time during the
7
week; and
8
(b) paragraph (b) of the definition of
working hours
in
9
subsection (2) did not apply to the employee for the week.
10
Note:
Subsections 39A(3A) and (3B) deal with the circumstances in which a
11
casual employee is taken to have been an eligible employee for the
12
whole of a week.
13
5 After paragraph 39AB(5)(a)
14
Insert:
15
(aa) then, if because of the operation of subsections 39AA(3) to
16
(5), there are one or more weeks of qualifying service
17
completed by the employee before the calculation day:
18
(i) that are applicable weeks within the meaning of
19
section 39AA; and
20
(ii) for which the number of hours of long service leave the
21
employee is entitled to under section 39AA cannot be
22
determined yet;
23
add together the number of hours for each of those applicable
24
weeks worked out under subsection (6) of this section;
25
6 At the end of subsection 39AB(5)
26
Add (before the notes):
27
Note 1A: Paragraph (aa) may apply because the hours of work for a casual
28
employee are averaged across the weeks beginning in a quarter and
29
the quarter may not have ended yet.
30
7 At the end of section 39AB
31
Add:
32
Schedule 6
Coal mining long service leave scheme
26
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
No. , 2023
(6) For the purposes of paragraph (5)(aa), the number of hours for an
1
eligible employee for an applicable week is worked out using this
2
formula:
3
13
Working hours
416
ï‚´
4
where:
5
working hours
means the lesser of the following number of hours:
6
(a) the result of dividing:
7
(i) the total number of hours worked by the employee as a
8
casual employee for all of the applicable weeks covered
9
by paragraph (5)(aa); by
10
(ii) the number of applicable weeks covered by
11
paragraph (5)(aa);
12
(b) 35 hours.
13
8 Subsection 39AC(1)
14
After "an eligible employee", insert "(other than a casual employee)".
15
9 Before subsection 39AC(3)
16
Insert:
17
(2) If a casual employee takes a period of long service leave, the
18
employer must pay the employee for the long service leave no less
19
than an amount that is equal to:
20
(a) if an industrial instrument that covers the employee specifies
21
that the employee is to be paid a casual loading and the
22
casual loading can be quantified--the base rate of pay
23
(including incentive-based payments, bonuses and the casual
24
loading) that would have been payable to the employee
25
during the period had the employee not taken the leave; or
26
(b) otherwise--the ordinary rate of pay (including
27
incentive-based payments and bonuses) that would have been
28
payable to the employee during the period had the employee
29
not taken the leave.
30
Civil penalty:
60 penalty units.
31
Coal mining long service leave scheme
Schedule 6
No. , 2023
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
27
10 After paragraph 39AC(3)(a)
1
Insert:
2
(aa) a reference to the ordinary rate of pay payable to an
3
employee is a reference to the employee's ordinary rate of
4
pay before any amounts are deducted under a salary sacrifice
5
arrangement; and
6
11 At the end of subsection 50(3)
7
Add "or subsection 39A(3C)".
8
Coal Mining Industry (Long Service Leave) Payroll Levy
9
Collection Act 1992
10
12 Section 3
11
Insert:
12
covers
has the same meaning as in the Administration Act.
13
industrial instrument
has the same meaning as in the
14
Administration Act.
15
13 Subsection 3B(3)
16
Repeal the subsection, substitute:
17
(3) If an eligible employee is a casual employee, the employee's
18
eligible wages
are:
19
(a) if an industrial instrument that covers the employee specifies
20
that the employee is to be paid a casual loading and the
21
casual loading can be quantified--the base rate of pay paid to
22
the employee, including incentive-based payments, bonuses
23
and the casual loading; or
24
(b) otherwise--the ordinary rate of pay paid to the employee,
25
including incentive-based payments and bonuses.
26
14 After paragraph 3B(4)(a)
27
Insert:
28
(aa) a reference to the ordinary rate of pay paid to an employee is
29
a reference to the employee's ordinary rate of pay before any
30
Schedule 6
Coal mining long service leave scheme
28
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
No. , 2023
amounts are deducted under a salary sacrifice arrangement;
1
and
2
15 Paragraph 5(2)(b)
3
Omit "a form approved by the Board", substitute "the form approved in
4
an instrument under subsection (2A)".
5
16 After subsection 5(2)
6
Insert:
7
(2A) The Corporation must, by notifiable instrument, approve a form for
8
the purposes of paragraph (2)(b). The Corporation must consult the
9
Secretary of the Department before approving the form.
10
17 Application provisions
11
(1)
The amendments of sections 39A and 39AA of the
Coal Mining
12
Industry (Long Service Leave) Administration Act 1992
made by this
13
Schedule apply in relation to weeks beginning on or after the
14
commencement of this item.
15
(2)
The amendments of section 39AB of the
Coal Mining Industry (Long
16
Service Leave) Administration Act 1992
made by this Schedule apply in
17
relation to calculation days occurring on or after the commencement of
18
this item.
19
(3)
The amendments of section 39AC of the
Coal Mining Industry (Long
20
Service Leave) Administration Act 1992
made by this Schedule apply in
21
relation to a period of long service leave that is taken on or after the
22
commencement of this item, where the period begins on or after that
23
commencement.
24
(4)
The amendments of section 3B of the
Coal Mining Industry (Long
25
Service Leave) Payroll Levy Collection Act 1992
made by this Schedule
26
apply in relation to eligible wages paid on or after the commencement
27
of this item, to the extent that those wages relate to days occurring on or
28
after that commencement.
29
(5)
The amendments of section 5 of the
Coal Mining Industry (Long
30
Service Leave) Payroll Levy Collection Act 1992
made by this Schedule
31
apply in relation to months beginning on or after the commencement of
32
this item.
33
Technical corrections
Schedule 7
No. , 2023
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
29
Schedule 7--Technical corrections
1
2
Fair Work Act 2009
3
1 Paragraph 237(2)(c)
4
Omit "that".
5
2 Paragraph 771(d)
6
Omit "and.", substitute "and".
7
Schedule 8
Application and transitional provisions
30
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
No. , 2023
Schedule 8--Application and transitional
1
provisions
2
3
Fair Work Act 2009
4
1 In the appropriate position in Schedule 1
5
Insert:
6
Part 14--Amendments made by the Fair Work
7
Legislation Amendment (Protecting
8
Worker Entitlements) Act 2023
9
Division 1--Definitions
10
86 Definitions
11
In this Part:
12
amended Act
means this Act as amended by the
Fair Work
13
Legislation Amendment (Protecting Worker Entitlements) Act
14
2023
.
15
amending Act
means the
Fair Work Legislation Amendment
16
(Protecting Worker Entitlements) Act 2023
.
17
Division 2--Amendments made by Schedule 2 to the
18
amending Act
19
87 Amendments about unpaid parental leave
20
(1) The amendments made by Schedule 2 to the amending Act apply
21
in relation to an employee in respect of a child if the child's date of
22
birth, or day of placement, is on or after 1 July 2023.
23
(2) If:
24
(a) before the commencement of Schedule 2 to the amending
25
Act, an employee gave notice to the employee's employer in
26
Application and transitional provisions
Schedule 8
No. , 2023
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
31
accordance with subsection 74(1) of the taking of a period of
1
unpaid parental leave under section 72 in relation to a child;
2
and
3
(b) the period of unpaid parental leave is covered by
4
paragraph 72(3)(a) or (4)(a); and
5
(c) the child's date of birth, or day of placement, is on or after
6
1 July 2023;
7
the period of unpaid parental leave is to be treated, after the
8
commencement of Schedule 2 to the amending Act, as a
9
continuous period of unpaid parental leave under section 71 of the
10
amended Act.
11
(3) If:
12
(a) before the commencement of Schedule 2 to the amending
13
Act, an employee gave notice to the employee's employer in
14
accordance with subsection 74(1) of the taking of a period of
15
concurrent leave under subsection 72(5) in relation to a child;
16
and
17
(b) the child's date of birth, or day of placement, is on or after
18
1 July 2023;
19
the period of concurrent leave is to be treated, after the
20
commencement of Schedule 2 to the amending Act, as a period of
21
flexible unpaid parental leave under section 72A of the amended
22
Act.
23
(4) If:
24
(a) before the commencement of Schedule 2 to the amending
25
Act, an employee gave notice to the employee's employer in
26
accordance with subsection 74(1) of the taking of a period of
27
unpaid parental leave under section 71, 72 or 72A in relation
28
to a child; and
29
(b) the child's date of birth, or day of placement, is on or after
30
1 July 2023;
31
then:
32
(c) the employee may give the employer a written notice (an
33
amendment notice
) that makes amendments to the
34
subsection 74(1) notice that are consistent with the amended
35
Act; and
36
Schedule 8
Application and transitional provisions
32
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
No. , 2023
(d) if the employee gives an amendment notice to the employer
1
in relation to the child:
2
(i) the amendments made by the amendment notice must
3
not take effect until at least 4 weeks after the
4
amendment notice is given to the employer; and
5
(ii) any requirement imposed by this Act (other than
6
subsection 74(4) or (4B)) in relation to the period within
7
which the employer is to be given written notice of the
8
taking of unpaid parental leave is waived for the taking
9
of the unpaid parental leave covered by the amendment
10
notice; and
11
(e) the employee is not entitled to give more than one
12
amendment notice to the employer in relation to the child.
13
Division 3--Amendments made by Schedule 3 to the
14
amending Act
15
88 Superannuation--reduction of employer's liability to the extent
16
of superannuation charge payments
17
Subsection 149B(2), as inserted by Part 2 of Schedule 3 to the
18
amending Act, applies in relation to an employer's obligation to
19
make superannuation contributions on behalf of an employee,
20
whether the requirements of that subsection are satisfied before or
21
after the commencement of that Part.
22
Division 4--Amendments made by Schedule 4 to the
23
amending Act
24
89 Interaction of a workplace determination with an earlier
25
enterprise agreement
26
The amendments made by Schedule 4 to the amending Act apply
27
in relation to:
28
(a) an enterprise agreement that applies to an employee in
29
relation to particular employment before, on or after the
30
commencement of that Schedule; and
31
(b) a workplace determination that:
32
Application and transitional provisions
Schedule 8
No. , 2023
Fair Work Legislation Amendment (Protecting Worker Entitlements)
Bill 2023
33
(i) covers the employee in relation to the same
1
employment; and
2
(ii) comes into operation before, on or after the
3
commencement of that Schedule.
4
Division 5--Amendments made by Schedule 5 to the
5
amending Act
6
90 Employee authorised deductions
7
(1) An authorisation made for the purposes of paragraph 324(1)(a) that
8
is in force immediately before the commencement of Schedule 5
9
continues in force, after the commencement, until it is withdrawn.
10
(2) An authorisation covered by subclause (3) that is in force
11
immediately before the commencement of Schedule 5:
12
(a) is taken to be, and taken always to have been, made in
13
compliance with section 324 as in force immediately before
14
the commencement; and
15
(b) continues in force, after the commencement, until it is
16
withdrawn.
17
(3) An authorisation is covered by this subclause if the authorisation:
18
(a) was purportedly made for the purposes of
19
paragraph 324(1)(a) as in force immediately before the
20
commencement of Schedule 5; and
21
(b) purportedly authorises multiple or ongoing deductions for
22
amounts as varied from time to time; and
23
(c) would, after the commencement, comply with section 324 of
24
the amended Act.
25
(4) However, paragraph (2)(a) does not affect rights or liabilities
26
arising between parties to proceedings:
27
(a) in which judgment is reserved by a court before the
28
commencement of Schedule 5; or
29
(b) which have been heard and finally determined by a court
30
before the commencement;
31
to the extent those rights or liabilities arose from, or were affected
32
by, an authorisation covered by subclause (3).
33