Changes in modern awards

Changes in modern awards

The Fair Work Commission (FWC) is in the process of varying modern awards to include terms about workplace delegates and a right to disconnect. The FWC has also inserted a new note in the superannuation clause in each award which explains certain aspects of superannuation legislation.

Variations to modern awards - Superannuation

On 9 April 2024, the FWC inserted a new note in the superannuation clause of modern awards, which explains that the National Employment Standards (NES) were recently amended to make superannuation a minimum entitlement for all employees.

The note also explains that if an employee does not choose their own superannuation fund and does not have a ‘stapled’ superannuation fund, the employer can pay superannuation into a fund nominated in the award provided that the fund is able to accept new contributions.

Employers should check the award that applies to their employees to confirm what the new provisions say.

What are stapled superannuation funds?

When people start a new job, they can choose which superannuation fund they want their employer contributions paid into. Since 1 November 2021, employers have been required to contact the Australian Tax Office (ATO) if the new employee does not choose a superannuation fund to determine whether that person has a ‘stapled superannuation fund’.

A stapled superannuation fund is an existing superannuation account which is linked or ‘stapled’ to an individual person so that it follows them as they change jobs.

What does our business have to do?

Employers may not need to do anything differently from what they are currently doing.

When a new employee starts employment, employers should ask whether they have a preferred superannuation fund that they would like their contributions paid into. If the new employee does not choose a superannuation fund, employers should contact the ATO to determine whether the individual has a stapled superannuation fund.

If the employee does not choose a superannuation fund and does not have a stapled superannuation fund, the employer is required to pay the employee’s superannuation contributions into one of the funds listed in the superannuation clause of the award.

Award variations to include a delegates’ rights term and a right to disconnect

What is a workplace delegate?

A workplace delegate is a person appointed or elected in accordance with the rules of a union to be a representative for the union members within a particular business.

The FWC is still in the process of varying modern awards to include terms about delegates’ rights and in future articles we will keep you informed of developments on this issue.

What is the right to disconnect?

The ‘right to disconnect’ provides employees with a new workplace right to disconnect from work. The right to disconnect means that when employees are not at work, they can choose not to read emails, text messages, or answer phone calls from their employer, unless their refusal to do so would be considered unreasonable.

The matters that can be considered when determining whether the employee’s refusal is unreasonable include:

• the reason for the contact or attempted contact
• how the contact or attempted contact is made and the level of disruption it causes the employee
• how the employee is compensated:
  • to remain available to perform work during the period in which the contact or attempted contact is made (e.g. is the employee on ‘stand-by’) or
  • for working additional hours outside of their ordinary hours (i.e. overtime rates)
• the nature of the employee’s role and their level of responsibility
• the employee’s personal circumstances (including family or caring responsibilities).

The FWC is still in the process of varying modern awards to include terms about the right to disconnect and we will keep you informed of developments on this issue.

Any variations made to modern awards will not come into operation until 26 August 2024 or 26 August 2025 for small businesses.