Part 1 one of 2 Loopholes Bills to come into Law

The Government’s Closing Loopholes Bill has been divided into two Bills. The first known as the Fair Work Legislation Amendment (Closing Loopholes) has now been passed by Parliament on 7 December 2023.

A second Bill, the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023, will be considered early next year.

The legislative provisions that passed include:

• introducing a new criminal offence of industrial manslaughter
• making it easier for emergency service workers to claim for PTSD,
• protecting family and domestic violence victims from adverse action (such as dismissal) by their employers,
• protecting redundancy payments for workers who might be working for larger businesses that have become technically a small business due to insolvency and
• bringing silica into line with asbestos under the Asbestos Safety and Eradication Agency,

The legislation passed by the Senate today will also:

• stop companies underpaying workers through the use of labour hire;

Unions will be able to apply for regulated labour hire arrangements.

However, obligations to pay a regulated labour hire worker at the “protected rate of pay” will not apply until at least November 1, 2024. The on-hire amendments are designed to prevent employers using labour hire workers to undermine pay and conditions set by enterprise agreements.

Earlier, amendments to the Bill had been introduced excluding ‘service contracts’ from those types of arrangements that can be brought under these changes which was a major win for subcontractors, such as electricians, who commonly undertake service and maintenance work. These are not considered to be labour hire.

However, those members who already hold a labour hire licence in their state (where applicable) will want to pay close attention to these changes as they roll out.

Changes passed also include:

• criminalising intentional wage and superannuation theft; and

However, the provision won’t take effect on the later of January 2025, or following the implementation of a voluntary small business wage compliance code, which will shield smaller employers from the new sanctions on wage and superannuation theft from criminal prosecution.

The Bill substantially:

• Boosts the rights of union delegates;

Employer groups have expressed concern over the increased benefits for workplace delegates as those “appointed or elected, in accordance with the rules of an employee organisation, to be a delegate or representative” for its members in a particular enterprise.

Workplace delegates can represent members and those eligible to join the union in disputes with their employer and must be allowed to have “reasonable communication” with them in relation to their industrial interests, reasonable access to the workplace and facilities and, unless the employer is a small business, reasonable access to paid time, during normal working hours, for “related training”.

The Bill does not give clarity to the number of union delegates with uncapped new paid training and access rights. In addition to costs, this has practical considerations, for how businesses engage with their workforces.

For example, the conditions do not require delegates to provide reasonable notice of their intention to take the leave or provide their employer with proof of attendance, the duration of the training or what was covered.

These new provisions write into law terms that have been a common feature of union Enterprise Bargaining Agreements for over 15 years.

Laws not yet passed through parliament include minimum standards for digital platform workers, road transport industry reforms and a better deal for casual workers who want to become permanent.

MEA will continue to update members with more information on each provision so that they may prepare for those terms as they reach their operative dates.

Should you have any questions regarding the changes passed to date please contact the Employer Advice Team on 1300 889 198.

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