The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 amends the Fair Work Act 2009 (the Act) to provide a range of measures that apply to businesses of all sizes. This legislation received Royal Assent to commence application on 14 December 2023.
Implementation Dates Timetable:
15 December 2023
Commencement of the following:
- Small business redundancy exemption provisions
- Regulated labour hire arrangement jurisdiction
- Workplace delegates’ rights provisions
- Protections for employees who experience family and domestic violence
- Amendments to compulsory conciliation conferences in protected action ballot order matters
1 July 2024
- Delegates’ rights term must be included in an enterprise agreement approved by vote on or after 1 July 2024
- A workplace determination made by the Fair Work Commission on or after 1 July 2024 must include a delegates’ rights term
1 November 2024
- Regulated labour hire arrangement orders can commence operation
1 January 2025
- Wage theft provisions – criminalising wage theft
- The new wage theft offence will cover intentional underpayments, not honest mistakes
At present, wage theft provisions will commence application on the later of 1 January 2025 and the day after the Minister declares a Voluntary Small Business Wage Compliance Code. To clarify, a small business employer has less than 15 employees by headcount (Small Business Fair Dismissal Code).
Jobs Australia will continue to monitor this important area of Workplace Relations and will provide updates to Members regarding the commencement of wage theft provisions on small business employers later in 2024 when the federal government announces the compliance code.
Closing Loopholes Provisions: Commencing 15 December 2023:
Small Business Exemptions:
Regulating Labour Hire Arrangement Orders
- This measure will not apply where the host is a small business employer (fewer than 15 employees by headcount).
- Where the Fair Work Commission (FWC) is satisfied the host is a small business employer, it will not be able to make an order that labour hire employees must be paid at least what they would receive under the host’s enterprise agreement.
- Small business employers will not be required to provide reasonable access to paid time for workplace delegate training. All other parts of this measure will apply equally to all employers.
Wage theft provisions (1 January 2025)
There will be pathways to safe haven for small businesses who have tried to correct mistakes with paying their workers:
- Small businesses that may have underpaid employees will not be referred for criminal prosecution of the wage theft offence if they can show compliance with a new Voluntary Small Business Wage Compliance Code.
- The Code will be developed by government in partnership with employer and employee groups. The offence will not commence if the Code is not declared.
- The Fair Work Ombudsman (FWO) may also enter into a cooperation agreement with a person, including an employer, if they disclose that they have engaged in conduct that may amount to the commission of the wage theft offence. The FWO may agree not to refer the conduct for prosecution, after assessing the employer against a non-exhaustive list of factors.
For all employers
Regulated labour hire arrangement jurisdiction
- The Fair Work Commission will have power to consider applications relating to some labour hire employees.
- This provision relates to circumstances where an employer disputes paying labour hire employees the same rates of pay as employees regulated by an industrial instrument.
- Regulated labour hire arrangement orders (including providing reasonable access to paid time for workplace delegate training) cannot come into force until at least 1 November 2024.
Workplace delegates’ rights provisions
- The Fair Work Commission has the power to make a model term for modern awards relating to workplace delegates (i.e.) union delegates rights.
Protections for employees who experience family and domestic violence
- General Protections provisions of the Fair Work Act 2009 (cth) are amended as follows:
- Protection has been strengthened for employees who have been, or are being, subjected to family and domestic violence from discrimination in the workplace.
- Introduce a general protection for workplace delegates when carrying out their role at a workplace.
Amendments to compulsory conciliation conferences in protected action ballot order matters
- Where parties have not successfully concluded enterprise negotiations for a replacement agreement and a protected industrial action ballot is proposed by union(s) representing members who are employees, then:
- The Fair Work Commission may make amendments to provisions regarding protected action ballot order conferences
Fact sheets covering all amendments are located on the Department of Employment and Workplace Relations’ website
Closing Loopholes (No 2) proposed legislation
The Fair Work Legislation Amendment (Closing Loopholes No 2) Bill 2023 will be debated in the Senate in February 2024.
Throughout 2024 there are significant changes to Workplace Relations occurring which are complex and have impacts across all Australian workplaces including further proposed legislation that will not be debated in the Senate until at least February 2024.
Jobs Australia will continue to provide periodic updates to Members about the new legislation and regarding the outcome of proposed legislation amendments once debate by the Senate is completed.
The Jobs Australia Team