On the 4th of September, the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 was introduced into the House of Representatives.

The Bill seeks to make quite an extensive number of amendments to the Fair Work Act 2009 (& related legislation) to improve the workplace relations framework by:

• replacing the existing definition of ‘casual employee’ with an objective definition and by introducing a pathway for eligible employees to convert to permanent employment (if they wish to do so).
• Addressing anomalous consequences of the small business redundancy exemption in insolvency contexts by providing an exception to its operation when a larger business downsizes to become a smaller business employer due to insolvency.
• 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 in place of the existing provisions according to which these terms are made by regulation.

• Protecting bargained wages in enterprise agreements from being undercut by the use of labour hire workers who are paid less.
• Supporting workplace delegates by providing a framework for delegates’ rights and 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.
• 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 services contracts to which an independent contractor is a party.
• Repealing a sun-setted 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.

A number of the proposed amendments will have quite broad and far-reaching implications.  For example, the casual conversion, contractor, underpayment penalties, wage theft and industrial manslaughter items.

We will provide updates and further details concerning the amendments included in the Bill as it progresses through the legislative process.

Employers are encouraged to get ahead of these amendments to ensure that their arrangements remain compliant once the Bill becomes law.

To learn more, employers can head over to the Department of Employment & Workplace Relations website.  And of course, you can contact us with any questions.

Sky Accountants Ballarat

Phone: 03 5332 8855

Office Address: 902 Howitt Street, Wendouree, Victoria 3355, Australia

Postal Address: PO Box 2234, Bakery Hill, Victoria 3354

Sky Accountants Gisborne & Macedon Ranges

Phone: 03 5428 1400

Office Address: 45 Hamilton Street, Gisborne, Victoria 3437, Australia

Postal Address: PO Box 270 Gisborne Victoria 3437