Published by:
Victorian Government Solicitor's Office
Date:
12 July 2023

In this Update, the VGSO's Workplace Relations and Occupational Health and Safety (WROS) Team provides a summary of key recent changes to the Fair Work Act 2009 (FW Act) and other important workplace-related matters that should be on the radar of Victorian Public Sector employers.

Changes to the FW Act from 1 July 2023

As you may be aware, changes to the FW Act as a result of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) are being implemented in stages (a detailed look at the changes, and their effect on VPS employers were detailed in our previous publication - Proposed amendments to the Fair Work Act - what public sector employers need to know).

An important change was implemented on 1 July 2023 with an increase to the cap that can be awarded through small claims court proceedings from $20,000 to $100,000.1 The small claims court allows individuals, without a lawyer, to seek recovery of money to which they were entitled, including under the FW Act or a fair work instrument (for example an enterprise agreement).

The substantial increase in underpayment matters that can proceed in the small claims court will assist workers to recover larger unpaid work entitlements through more affordable and simplified court proceedings.

Other important changes

Other key changes effective on 1 July 2023 include:

  • A civil penalty unit increased from $275 to $313. This will impact consequences of non-compliance, for example, where the FW Act imposes 60 civil penalty units for a contravention of the minimum wage provisions, the maximum penalty has increased from $16,500 to $18,780.2
  • The superannuation guarantee rate has increased from 10.5% to 11%. Employers must update their payroll systems to ensure they contribute an additional 0.5% to their employees' superannuation effective 1 July 2023.
  • Increase to the National Minimum Wage (NMW). Following its Annual Wage Review, the Fair Work Commission (FWC) increased the modern award minimum wage and the National Minimum Wage (NMW) by 5.75% effective 1 July. The NMW is now $23.23 per hour, or $882.80 per week.
  • Changes affecting unfair dismissals. Changes to the high income threshold and statutory compensation cap in unfair dismissal applications are as follows:
    • The high income threshold for unfair dismissal claims has increased from $162,000 to $167,500, meaning that employees who receive an annual income higher than $167,500 and are not covered by either a modern award or an enterprise agreement are not eligible to bring an unfair dismissal claim as of 1 July 2023.
    • The maximum amount of compensation that can be awarded in unfair dismissal claims is now capped at $83,750.

Second Tranche of Changes to the FW Act

A second tranche of changes to the FW Act received Royal Assent on 30 June 2023. The Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Cth) amends workplace relations laws relating to a number of matters including:

  • protection for migrant workers (from 1 July 2023)
  • workplace determinations (from 1 July 2023)
  • superannuation in the National Employment Standards (from 1 January 2024)
  • flexible unpaid parental leave (from 1 July 2023)

The Protecting Worker Entitlements Act inserts a new provision in the FW Act relating to the Migration Act 1958 (Cth) and provides that a breach of the Migration Act or any instrument made under it, does not affect the validity of a contract of employment or contract for services for the purposes of the FW Act. This change will ensure that employers cannot take advantage of an employee's status as a visa-holder to their detriment.

Provisions relating to workplace determinations confirm that once a workplace determination is handed down by the FWC, the previous enterprise agreement will cease to apply.

The amendments insert a provision into the National Employment Standards which confirms that an employer must make contributions to a superannuation fund for the benefit of certain employees so as to avoid liability to pay the superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the employee.

Changes have also been made to flexible unpaid parental leave which increase an employee's entitlement to 'flexible unpaid parental leave' from 30 days to 100 days over a 24 month period.3 Further, pregnant employees will be able to access some of their flexible unpaid parental leave 6 weeks prior to the expected birth of the child.4 The restrictions which prevented employees from taking more than 8 weeks of unpaid parental leave concurrently with their co-parent, have been removed from the FW Act.

Removal of OHS Regulations on COVID-19 vax information

On 12 July 2022, a new Part 2.1A was inserted into the Occupational Health and Safety Regulations 2017 in relation to the collection and use of COVID-19 vaccination information, which included information about:

  • whether and when an employee has received any dose of a COVID-19 vaccination
  • whether an employee is unable to receive a dose of a COVID-19 vaccination or a further dose due to a medical contraindication, an acute medical illness or the person's age.

View a copy of Part 2.1A.

Regulation 21D of Part 2.1A confirms that an employer is 'authorised to collect, record, hold and use COVID-19 vaccination information for persons who attend a workplace under the employer's management or control', in order to determine and implement reasonably practicable measures to control risks to health and safety associated with COVID-19 at that workplace.

Part 2.1A has a revocation date of 12 July 2023, with a requirement under Regulation 21E that COVID-19 vaccination information must be destroyed within 30 days after 12 July 2023 unless a law of Victoria or the Commonwealth or of any other State or Territory requires the information to be destroyed on an earlier date or permits or requires the information to be retained on or after 12 July 2023.

This means that COVID-19 vaccination information must be destroyed by Friday, 11 August 2023, unless the retention of the information is otherwise permitted as above.

The general duties owed by employers to employees and non-employees under the Occupational Health and Safety Act 2004 (OHS Act) are a possible basis for the retention of COVID-19 vaccination being permitted by law, namely that the receipt/retention of COVID-19 vaccination information:

  • enables a duty holder to manage workplace health and safety risk in compliance with their obligations
  • constitutes a 'reasonably practicable' measure in the fulfilment of a duty imposed by the OHS Act
  • is part of a policy instituted by the organisation in a good faith attempt to discharge its duties under the OHS Act.

However, whether this argument can withstand challenge remains to be seen.

Upcoming Psychological Health Hazards and Sexual Harassment webinars for the Victorian Public Sector

We will be providing two free webinars for the Victorian Public Sector in August 2023:

Separate paid training workshops on sexual harassment will be conducted for the Victorian Public Sector as follows:

  • for Victorian Public Sector employees - on Thursday 31 August 2023
  • for Victorian Public Sector managers - on Thursday 7 September 2023

We are also available to develop and deliver bespoke and tailored training sessions on these and other workplace relations and OHS topics for your organisation.

Victorian Public Sector Employers

Please contact us if you would like more information regarding the content of this Update.

Frances Anderson
Assistant Victorian Government Solicitor
E. frances.anderson@vgso.vic.gov.au

Dana Wintermantel
Managing Principal Solicitor
E. dana.wintermantel@vgso.vic.gov.au

Kerry Maikousis
Managing Principal Solicitor
E. kerry.maikousis@vgso.vic.gov.au

Veronica Belot
Managing Principal Solicitor
E. veronica.belot@vgso.vic.gov.au

1 see s 548 (2)(a) of the Fair Work Act 2009 (FW Act).

2 see Chapter 4 of FW Act.

3see s 72A(1) of the FW Act

4 see s 72A(2a) of the FW Act

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