A Changing Employment World
The Federal Government has been actively introducing changes to the Fair Work Act 2009 over the last 12 months and more changes are on the horizon. Here is a summary of some of those changes that are relevant to schools:
1. From 6 December 2023, the length of fixed term contracts has been limited. A contract of employment must not include a term that provides the contract will terminate at the end of an identifiable period if:
a) the period is greater than two years; or
b) the contract can be renewed so that the employee is employed for more than 2 years; or
c) the contract has an option or right to extend more than once, even if the total period is less than two years; or
d) in certain circumstances, the employee is employed under consecutive contracts.
However, such a term may be included in some circumstances, including where a modern award permits the term.
A Fixed Term Contract Information Statement, prepared by the Fair Work Ombudsman, must be given to certain current and prospective employees, in addition to the Fair Work Information Statement.
The above provisions do not apply to a contract of employment if:
a) the employee is engaged under the contract to perform only a distinct and identifiable task involving specialised skills; or
b) the employee is engaged under the contract in relation to a training arrangement; or
c) the employee is engaged under the contract to undertake essential work during a peak demand period; or
d) the employee is engaged under the contract to undertake work during emergency circumstances or during a temporary absence of another employee; or
e) in the year the contract is entered into the amount of the employee’s earnings under the contract is above the high income threshold for that year ($167,500 from 1 July 2023); or
f) the contract relates to a position for the performance of work that:
(i) is funded in whole or in part by government funding or funding of a kind prescribed by the regulations for the purposes of this subparagraph; and
(ii) the funding is payable for a period of more than 2 years; and
(iii) there are no reasonable prospects that the funding will be renewed after the end of that period; or
g) the contract relates to a governance position that has a time limit under the governing rules of a corporation or association; or
h) a modern award that covers the employee includes terms that permit any of the circumstances limited by the new rules.
2. From 15 December 2023, it has been unlawful for an employer to take adverse action (including dismissal) against an employee because the employee is (or has been) experiencing family and domestic violence.
3. From 30 December 2023, employees must give written permission for an employer to deduct from the employee’s pay “employee authorised deductions” that are:
a) either one-off or recurring;
b) for specific amounts or for amounts that change from time to time.
An example of such a deduction is a payment to a health fund.
Employers can only make employee authorised deductions where the deductions are mainly for the employee’s benefit.
4. From 1 January 2024, the National Employment Standards include a right to superannuation contributions. This means that most employees covered by the Standards can take court action under the Fair Work Act 2009 to recover unpaid or underpaid superannuation. This provision is on top of the obligation employers already have to pay superannuation contributions for eligible employees under superannuation guarantee laws.
5. From 1 July 2024, employees may take up to 100 days unpaid leave when they have a child. The leave may be taken whenever they want in the two years after the baby is born or placed with them. Further, employees may take up to six weeks unpaid leave before the due date if they are expecting a baby.
6. From 1 January 2025, there will be a new federal criminal offence of ‘wage theft’ directed at employers who deliberately fail to pay their employees their entitlements under the Fair Work Act 2009 and enterprise agreements but not their employment contracts. The offence will only be committed if the employer deliberately attempts to withhold pay from employees. It won’t be an offence to make an accidental mistake. However, the penalties for offending will be a maximum possible penalty for an individual of 10 years imprisonment and a maximum fine for a body corporate of up to $7.825 million or three times the amount that was underpaid if that amount exceeds the maximum fine.
Please contact David Ford or Stephanie McLuckie if you have questions about these changes.
