Key Points From Part 1 Of Closing The Loophole Bill Passed December 2023
On 4 September 2023, the Labor Government introduced the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 into Parliament, proposing significant changes to workplace laws. Please see our previous article on the Bill.
The Senate opted to split the legislation into two bills with Part 1 of the Bill being passed on 7 December 2023, and the second will be reviewed early next year.
The Senate passed the following key measures under Part 1 of the Bill and it received Royal Assent on 15 December 2023:
- Protections for family and domestic violence victims from discrimination and adverse action;
- New powers for the Fair Work Commission to make ‘same job same pay’ orders for labour-hire workers, preventing companies from underpaying labour-hire workers;
- New workplace delegate rights and protections;
- Protecting redundancy payments for employees who work for large businesses that claim the small business redundancy exemption;
- Loosening of right of entry rules for officials assisting a State of Territory health and safety representative;
- Expanding the scope of Asbestos Safety and Eradication Agency to include silica (commenced 15 December 2023);
- Expanding the scope of Work Health and Safety Act 2011 (Cth) (commencing 1 July 2024) to include the offence of industrial manslaughter with penalties of up to 25 years imprisonment for an individual or $18 million for a body corporate;
- Easier workers’ compensation claims process for first responders who experience PTSD under the Safety, Rehabilitation and Compensation Act 1998 (presumptive provisions commenced 15 December 2023 and amendments requiring the Guide to be prepared will commence 15 June 2024); and
- Criminalising wage theft to include superannuation (proposed commencement date 1 January 2025) with fines up to $7.8 million and 10 years in jail for deliberate acts of underpayment.
The first 5 changes listed above commenced immediately from 15 December 2023:
- Protections for family and domestic violence victims from discrimination and adverse action;
- New powers for the Fair Work Commission to make ‘same job same pay’ orders for labour-hire workers, preventing companies from underpaying labour-hire workers (actually applies from 1 November 2024);
- New workplace delegate rights and protections (see below);
- Protecting redundancy payments for employees who work for large businesses that claim the small business redundancy exemption;
- Loosening of right of entry rules for officials assisting a State of Territory health and safety representative.
Part 2 of the Bill (e.g. definition of casual employees and gig economy workers) will form part of a separate statute and will be considered by Parliament in early 2024.
New workplace rights for union delegates
Following amendments to the Fair Work Act 2009 (Cth) (FW Act), from 15 December union delegates have new protections and entitlements.
Union delegates are employees who are appointed or elected under the rules of their union to represent members in a particular enterprise.
Three new protections prohibit an employer from:
- Unreasonably failing or refusing to deal with a union delegate;
- Knowingly or recklessly making a false or misleading representation to a union delegate; or
- Unreasonably hindering, obstructing or preventing the exercise of the rights of a union delegate.
Employers would still be able to undertake reasonable management action, carried out in a lawful way. However, the employer will bear the burden for establishing that their conduct is not unreasonable.
The protections would not apply for any conduct required by or under a law of the Commonwealth or a state or territory, e.g. action taken under work health and safety legislation to ensure the health and safety of workers while at work. For instance, if a workplace delegate is bullying management or intimidating employees, the employer can take reasonable action in response to that conduct.
The protection will not apply to all officials of a union. It will also only apply to employees of the employer who are delegates of registered unions.
The new FW Act provides 3 entitlements for union delegate:
- Reasonable communication with members, and any other persons eligible to be members, in relation to their industrial interests;
- Reasonable access to the workplace and workplace facilities where the enterprise is being carried on; and
- Reasonable access to paid time, during normal working hours, for the purposes of related training.
An employer is only required to provide facilities to the extent that this would be reasonable. What is reasonable depends on:
- The size and nature of the relevant enterprise;
- The resources of the employer at the enterprise; and
- The facilities available at the relevant enterprise.
Small business employers would be exempt from the obligation to provide union delegates paid time for undertaking training for their role as a workplace delegate.
From 2024, enterprise agreements must include a term that provides for the exercise of the rights of union delegates. This will apply to those agreements voted on by employees after 1 July 2024. This term will operate in lieu of the above FW Act provisions regarding reasonable communications and access for delegates.
Akyra Takeaways
Managing Director of Akyra Strategy & Development strongly recommends the following steps to ensure your business mitigates the risk of wage theft:
- Ensure you have compliance measures in place to identify which industrial instrument applies to an employee’s role.
- Check that employee classifications under the relevant (and correct) Modern Award are accurate.
- Implement sound record-keeping processes.
- Ensure you’ve remedied any existing historical underpayment notices before the new legislation is enacted.
Small businesses (those with fewer than 15 employees) will be protected before this legislation is enacted.
If you have any questions, please reach out to Akyra for a free 30-minute consultation.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.
