On Sep. 4, AST PRL introduced bill to amend the Fair work act 2009.
AST PRL introduced and read for the first time the Fair work legislation amendment (closing loopholes) bill 2023, a bill for an act to amend law re workplace relations.
In addition, to amend law re work health and safety, workers’ compensation as well as rehabilitation; certain independent contractors; unfair contracts; various other aspects.
AST PRL also published an explanatory memorandum with respect of this bill.
Bill would amend the Fair work act 2009 (FW act) and related legislation to improve the workplace relations framework, including by improving job security by replacing the existing definition of casual employee with a fair as well as objective definition.
In addition, by introducing a new employee choice pathway for eligible employees to change to permanent employment if they wish to do so; and addressing anomalous consequences of the small business redundancy exemption in insolvency contexts.
It will be addressing this 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 through various means.
In addition, protecting bargained wages in enterprise agreements from being undercut by the use of labor hire workers who are paid less than those minimum rates.
Establishing a protected attribute in FW act to improve workplace protections against discrimination for employees who were/are subjected to family, domestic violence.
Changing a defense of misrepresenting employment as independent contractor arrangement; enabling registered organization to obtain an exemption certificate from AST FWC to waive 24 hours’ notice requirement for entry re underpayment situations.
Empowering AST FWC to take action re future issue of such exemption certificates if those rights are misused; and increasing maximum penalties for underpayments.
Other amendments include new criminal offense for wage theft re intentional conduct.
In addition, inserting into the FW act an interpretive principle for determining the ordinary meanings of employee as well as employer for the purposes of the FW act.
Allowing AST FWC to set fair minimum standards for employee-like workers, i.e. in gig economy; allowing AST FWC to deal with disputes about unfair terms in services contracts to which an independent contractor is a party; amendment re workers comp.
Introducing new offense of industrial manslaughter in Work health and safety act 2011 (WHS act); aligning the WHS act offense framework with recent changes to the Model WHS law by indexing the penalties for existing offences to the consumer price index.
Next Steps
This bill will follow the required legislative process.
Sep. 7, 2023 Bill Referred to a Committee
On Sep. 7, 2023, AST PRL said the Senate referred the provisions of the Fair work legislation amendment (closing loopholes) bill 2023 discussed above to the Education and Employment Legislation Committee for inquiry and report by Feb. 1, 2024.
Committee invited individuals and organizations to send in their opinions, proposals.
In Nov. 2023, AST PRL said bill introduced to amend Fair work act 2009, see #190492.
In Nov. 2023, AST PRL said bill introduced re domestic, family violence, see #190500.
Dec. 15, 2023 Enactment and Commencement
On Dec. 15, 2023, AST GVT registered Fair work legislation amendment (closing loopholes) act 2023 after Fair work legislation amendment (closing loopholes) bill 2023 above received Royal Assent on Dec. 14, 2023; commencement is per table in s 2.
On same day, AST Fair Work published page on the changes to the act; amendments take effect at various times into 2025; major amendments i.e. criminalizing intentional wage theft and non-payment of super commence not before Jan. 1, 2025.
Voluntary small business wage compliance code will be available to small business employers; amendments re equal pay for labor hire workers commences on/from Dec. 15, 2023; however some anti-avoidance provisions applied from Sep. 4, 2023.
Amendments re discrimination protections, small business redundancy rules, and workplace delegate rights, right of entry, will also commence on/from Dec. 15, 2023.
Amendments re certain requirements on AST Fair Work commence on Jun. 14, 2024.
The amendments re new criminal offense of industrial manslaughter start Jul. 1, 2024.
On same day, AST FWC also commented, published Closing loopholes - what's changing page; relevant forms will be published as soon as they are available; parties can make an application using Form F1 - general application form in meantime.
AST FWC will make a statement early in week of Dec. 25, 2023 setting out how AST FWC intends to implement the new measures; from Jul. 1, 2024, delegates’ rights term must be included in a workplace determination made on/after Jul. 1, 2024.
Delegates’ rights term must be included in enterprise agreement approved by vote on/after Jul. 1, 2024; Nov. 1, 2024, regulated labor hire arrangement orders can start.
Dec. 20, 2023 AST FWC Statement
On Dec. 20, 2023, AST FWC published a statement by its president, supplementing the Dec. 15 comments, about the impact of the closing loopholes act on AST FWC's work.
The statement provides an overview of the relevant amendments and outlines the approach AST FWC intends to take to implement those changes relevant to its work.
On the same day, AST GVT registered the latest compilation of the Fair work act 2009, reflecting changes made by the closing loopholes act, text as in force Dec. 15, 2023.
Dec. 21, 2023 Act Compilation
On Dec. 21, 2023, AST GVT registered latest compilation of the Work health and safety act 2011, reflects changes made by closing loopholes act, as in force Dec. 15, 2023.
It reminded there can be significant penalties for non-compliance regarding this act.
Including jail time for the new criminal offense; it wants employers to get it right in the first place and said it is here to help with free information and advice re the same.
In relation to criminalizing wage underpayments, AST Fair Work discussed its ability to impose maximum penalties and maximum imprisonment; and said it will investigate suspected criminal underpayment offenses once the offense takes effect during 2025.
It also guided on various aspects of the act i.e. re equal pay for labor hire workers; new discrimination protections; and reminded of its revised closing loopholes webpage.
In Jun. 2024, AST NSW FT issued bill for industrial manslaughter offense, #214496.
Jul. 2024 AST FWC on Right of Entry
On Jul. 1, 2024, AST FWC published Right of entry changes: exemption certificates relating to suspected underpayments, that guides on an additional ground AST FWC has, from Jul. 1, to issue exemption certificate giving a right to an entry permit holder.
Namely a right for holder to enter workplace or business premises without prior notice.
This document (of Jul. 1, 2024) guides/reminds that the ground applies where entry permit holder is investigating suspected breach that involves underpayment of wages.
