On 5 September 2023, Minister for Employment and Workplace Relations The Hon Tony Burke MP introduced the latest wave of workplace relations reforms into parliament titled “Closing Loopholes”. This legislation aims to amend the Fair Work Act and will be debated in the lower house for roughly four weeks. Following this, the bill will move to the Senate for further inquiry.
The Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Bill) would amend the Fair Work Act 2009 (FW Act) and related legislation to improve the workplace relations framework by:
- Introducing a new definition of ‘casual employee’ allowing eligible workers the option to transition to permanent employment.
- Addressing the anomalous consequences of the small business redundancy exemptions in insolvency cases, allowing exceptions for downsized larger businesses.
- Making targeted amendments to the bargaining framework by:
- Enabling multiple franchisees to access the single-enterprise stream;
- Allowing supported bargaining and single-interest employer agreements to be replaced by single-enterprise agreements at any time if certain conditions are met;
- Authorising the Fair Work Commission (FWC) to make and vary enterprise agreement model terms for flexibility, consultation, and dispute resolution replacing current regulatory methods.
- Protecting bargained wages in enterprise agreements from being undercut by the use of labour hire workers who are paid less than those minimum rates.
- Supporting workplace delegates by providing a framework for delegates’ rights, including protections for workplace delegates when seeking to exercise those rights.
- Establishing a new protected attribute in the FW Act to improve workplace protections against discrimination for employees who have been, or continue to be, subjected to family and domestic violence.
- Changing the defence to misrepresenting employment as an independent contractor arrangement, known as ‘sham contracting’, from a test of ‘recklessness’ to one of ‘reasonableness’.
- Enabling a registered organisation to obtain an exemption certificate from the FWC to waive the 24 hours’ notice requirement for entry if they reasonably suspect a member of their organisation has been or is being underpaid.
- Empowering the FWC to take action in relation to the future issue of such exemption certificates if those rights are misused (for example, by imposing conditions, or banning their issue for a specified period).
- Increasing maximum penalties for underpayments by amending the civil penalties and serious civil contravention frameworks and adjusting the threshold for what will constitute a serious contravention.
- Clarifying that Fair Work Ombudsman (FWO) compliance notices can require an employer to calculate the amount of an underpayment that is owed to an employee, and that a court can order the recipient of the notice to comply with its terms.
- Repealing amendments made by the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act 2020, relating to the withdrawal of parts of amalgamated organisations (de-merger).
- Introducing a new criminal offence for wage theft, which applies to intentional conduct.
- Inserting into the FW Act an interpretive principle for determining the ordinary meanings of ‘employee’ and ‘employer’ for the purposes of the FW Act. This would enhance fairness by requiring consideration of the real substance, practical reality, and true nature of the relationship by reference to the totality of the relationship between the parties.
- Allowing the FWC to set fair minimum standards for ‘employee-like’ workers, including in the gig economy.
- Allowing the FWC to set fair minimum standards to ensure the Road Transport Industry is safe, sustainable, and viable.
- Allowing the FWC to deal with disputes about unfair terms in service contracts to which an independent contractor is a party.
- Repealing an unsettled clause regarding applications to vary modern awards if already being dealt with in a four-yearly review.
- Extending the functions of the Asbestos Safety and Eradication Agency to address silica-related diseases.
- Introducing a presumption according to which first responders covered by the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) who sustain post-traumatic stress disorder (PTSD) will not have to prove their employment significantly contributed to their PTSD for the purpose of their workers’ compensation claim.
- Introducing a new offence of industrial manslaughter in the Work Health and Safety Act 2011, reflecting recommendations 23b of the Review of the Model Work Health and Safety Laws – Final Report (Boland Review) and 13 of the They Never Came Home Report (Senate Inquiry), and significantly increasing the penalties for the existing Category 1 offence.
- Aligning the WHS Act offence framework with recent changes to the Model WHS Law by indexing the penalties for existing offences to the Consumer Price Index.
As you see from the list above there is an ongoing effort by the Albanese Government to make significant changes to the Fair Work Act which will have a major impact on the way workplace relations is practiced in workplaces across Australia into the future.
Jobs Australia will monitor the passage of The Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Bill) and provide an update to Members once the Bill has passed into legislation.
If you have any questions regarding this information, please contact our Workplace Relations team on 1800 331 915.