Australia: Looping you in – Closing Loopholes (1) reforms

Fair Work Legislation Amendment (Closing Loopholes) Act 2023

In brief

Off the back of a deal struck between the Federal Government, independent Senators and the Greens late last year, the (278 page) Closing Loopholes Bill was split into two.

The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 ("Closing Loopholes 1") received Royal Assent on 14 December 2023. It contains reforms including new wage and superannuation theft offences, significant WHS changes and new laws regarding labour hire employees – all of which (and more) we cover below.

Closing Loopholes 2 (which promises to be a bigger, more complex sequel) will be debated in Parliament shortly.


Closing Loopholes 1 - Summary

The key takeaways are:

  • Introduction of a new Federal criminal offence of "wage theft" which will apply to employers who intentionally engage in conduct that results in employee underpayments. The new offence (which will come into force on 1 January 2025 at the earliest – possibly later) will cover employee entitlements under the Fair Work Act, a Modern Award or Enterprise Agreement and will also cover (with some limited exceptions) intentional underpayments of superannuation contributions. The offence will carry significant financial and criminal liabilities. Relief from penalties may be given where an employer self-reports an underpayment (or potential underpayment) to the Fair Work Ombudsman and otherwise cooperates with the FWO.
  • The Fair Work Commission has been given powers to make "same job same pay" orders requiring labour hire employers to pay their labour hire employees at least what would be payable if the host employer's enterprise agreement applied to them. Labour hire employers can request information from hosts which will enable them to comply with these laws. Exceptions apply for certain training arrangements and for small business employers. These new provisions (which amend the Fair Work Act) are in force now but the earliest effective date of any order is 1 November 2024.
  • A new industrial manslaughter offence and other work, health and safety reforms. Changes to the Work Health and Safety Act 2011 strengthen Commonwealth work health and safety offences and penalties by introducing an industrial manslaughter offence, increasing penalties (including penalties for officers) and providing new criminal responsibility provisions for bodies corporate and the Commonwealth. The industrial manslaughter offence will commence on 1 July 2024. Most of the other amendments are in force now.
  • Strengthening protections against discrimination for employees subjected to family and domestic violence by including "subjection to family and domestic violence" in the list of protected attributes in the Fair Work Act. These changes (which are now in force) make it unlawful to take adverse action against an employee because they have been or are being subjected to domestic or family violence.
  • Fixing an anomaly in the exemption from paying statutory redundancy pay in the insolvency context. Changes to the Fair Work Act fix a previous anomaly under which some employees were deprived of redundancy payments where their insolvent employer downsized to become a small business employer (with fewer than 15 employees). The amendments to the Fair Work Act (now in force) mean that employees dismissed due to the insolvency of their employer will retain their redundancy pay entitlements if their employer was not a small business employer prior to the insolvency.
  • New rights and protections for workplace delegates which ensure that delegates are given reasonable access to union members (and potential members), to paid time (during normal work hours) for training, and to workplace facilities. These changes to the Fair Work Act also prevent the exercise of workplace delegates' rights being hindered or obstructed by an employer. Some of these rights and protections (which are now in force) will be enshrined in all Modern Awards and future Enterprise Agreements.
  • Clarifications regarding Compulsory Conciliation Conferences. Previously the Fair Work Act required all employee bargaining representatives for an Enterprise Agreement to attend a compulsory conciliation conference for subsequent employee claim action to be protected. The amendments to the Fair Work Act provide that only the bargaining representative/s who applied for a Protected Action Ballet Order must attend the conference for subsequent employee claim action to be protected.
  • Greater recognition of silicosis and other silica-related diseases through the (newly renamed) Asbestos and Silica Safety Eradication Agency which will coordinate action in this space including by reporting on national efforts to eliminate silica-related diseases in Australia and by supporting workers and others affected by these diseases.
  • A new Post Traumatic Stress Disorder (PTSD) presumption (which is now in force) that if any first responder covered by the Safety, Rehabilitation and Compensation Act 1988 is diagnosed with PTSD it will be assumed, for worker's compensation purposes, that their employment significantly contributed to their condition.
  • Entry to Assist Health and Safety Representatives. The Fair Work Act has been amended to provide that officials of registered organisations, who do not hold a Fair Work entry permit, may enter workplaces to assist health and safety representatives.

Close every loophole - dot every i

Employers should now familiarise themselves with the changes brought about by Closing Loopholes 1 and carefully assess how these changes impact your business, people and operations.

Additionally, you should keep a watchful eye on the second half of the Bill (Closing Loopholes 2) which, as foreshadowed above, will include amendments dealing with more complex and controversial measures including casual employment, the definition of employment in the Fair Work Act, minimum standards for gig economy workers and road transport workers, intractable bargaining workplace determinations and sham arrangements.

As soon as we know more - we will loop you in.

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