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More Changes for Employers: Closing Loopholes Act Commenced in December 2023

Posted in Employer Update, Latest News, Legislation Update

Published February 2024

Just when we thought all the changes had been confirmed, further IR reforms and changes for employers have been passed as of late last year (2023) under the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 with varying effective dates. These have been passed earlier than the Albanese government originally indicated and adding to the multitude of changes which have been introduced since 2022.

In summary, the changes impact:

Criminalising intentional wage theft and non-payment of superannuation;
Same job, same pay for labour hire workers;
Discrimination protections for family and domestic violence;
Small business redundancy rules;
Union delegate rights; and
Amendments to Right of entry.

Throughout this update, the ‘Commission’ refers to the Fair Work Commission and the ‘Act’ refers to the Fair Work Act 2009.

WHAT'S ALREADY CHANGED

15 December 2023 – Equal pay for labour hire workers (same job, same pay)

This change introduces a framework for the Fair Work Commission to make Orders that mean some labour hire workers may be entitled to be paid the same as employees directly engaged by the host employers’ business.

Unions and individuals employed through labour hire, labour unions, host businesses, and employees of host businesses have the opportunity to submit applications to the Fair Work Commission (FWC) for a regulated labour hire arrangement order (Order). Note that “same job, same pay” is not an automatic entitlement or requirement.

Where the Commission makes an Order, it mandates that labour hire employees hosted by the nominated business are to be remunerated at a rate no lower than what they would receive if:

They were directly employed by the host business; and
Paid in compliance with an applicable enterprise agreement (or another employment instrument, such as a workplace determination).

However, regulated labour hire arrangement orders cannot come into force until at least 1 November 2024.

Employers failing to adhere to the new regulations may face penalties. This encompasses newly established restrictions effective from September 4, 2023, pertaining to engaging in agreements that:

prevent the Commission from issuing an order.
evade the implementation or impact of an already issued order.

Note, some anti-avoidance provisions applied from 4 September 2023 (yes, you read that correctly, it is not a typo).

15 December 2023 – New Discrimination Protections for employees who experience family and domestic violence

The Act now provides strengthened discrimination protections for employees encountering family and domestic violence (FDV). It is now deemed unlawful to undertake adverse actions against an employee who is a victim of FDV, and companies or individuals found in violation will face penalties.

Adverse actions against employees encompass:

Dismissing the employee;
Inflicting harm on the employee within their employment;
Modifying the employee’s position to their detriment;
Discriminating between the employee and other employees of the employer.

Previously, protection was primarily extended to workers experiencing injury or illness (physical or psychological) resulting from FDV or those who exercised (or refrained from exercising) their right to take FDV leave.

These changes complement the Australian Government’s introduction of 10 days of paid family and domestic violence leave in the Act.

15 December 2023 – Small business redundancy rules

Note that under the Act, a small business employer is one with fewer than 15 employees.

There are new redundancy payment rules for non-small business employers that downsize to a small business employer during bankruptcy or liquidation. Under the new laws, non-small business employers that become a small business employer in these circumstances may still be required to pay their employees redundancy pay.

For example, a business employs 20 people and 7 are made redundant. Despite the business now meeting the definition of a ‘small business’, redundancy pay may still need to be paid to the affected individuals.

15 December 2023 – Workplace delegate rights

New rights for workplace delegates is granting them the ability to communicate with union members and potential members, and access the workplace. Delegates in businesses that are not small business employers can access paid training related to their role depending on size and nature of the enterprise, and the enterprise’s resources and available facilities.

Simultaneously, employers are obligated not to unreasonably fail or refuse to engage with delegates, nor unreasonably hinder, obstruct, or prevent the exercise of the rights of a delegate. The changes will also require the inclusion of a compliant delegates’ rights term in all modern awards and future enterprise agreements, expected from 1 July 2024.

15 December 2023 – Right of entry

This change removes the requirement for officials assisting a state or territory work health and safety representative to hold an entry permit under the Act.

WHAT'S CHANGING NEXT

1 July 2024 – Modern Awards, delegates’ rights term

Modern Awards will soon include a delegates’ rights term.
Delegates’ rights term must be included in a workplace determination made on or after 1 July 2024.
Delegates’ rights term must be included in an enterprise agreement approved by vote on or after 1 July 2024.

1 July 2024 – Industrial Manslaughter and other work health and safety reforms

The changes amend the WHS Act to strengthen the work health and safety offences and penalties regime by creating higher penalties for breaching work health and safety duties.
Indexing mechanism to ensure work health and safety penalties retain their relative value and remain a serious deterrent into the future.
New criminal responsibility provisions to ensure bodies corporate, and the Commonwealth are held accountable for breaches of work health and safety duties.

1 November 2024

Regulated labour hire arrangement orders can commence operation – refer to ‘What’s Already Changed’ section for more info.

Not before 1 January 2025 – Wage theft provisions

As has been planned for some time, intentional wage theft and non-payment of superannuation will be criminalised on a date to be confirmed, that will not be before 1 January 2025.

Under these provisions, employers will commit an offence if:

They are required to pay an amount to an employee, such as wages, or on behalf of or for the benefit of an employee, such as superannuation, under the Fair Work Act or an industrial instrument; and
They intentionally engage in conduct that results in their failure to pay those amounts to or for the employee on or before the day they’re due to be paid.

Note, that where a genuine error has occurred, we do not expect that these provisions will apply.

A ‘Voluntary Small Business Wage Compliance Code’ will also be available to small business employers.

WHAT'S PROPOSED TO CHANGE

There is still more change expected. Some proposed changes of the Bill which were not passed in late 2023 and are still up for debate include the following – watch this space!

Another revision to the definition of casual employment and the casual conversion provisions could allow an employee-initiated conversion.
Additional provisions to safeguard regulated workers, such as those in the road transport industry and digital platform ‘gig economy’.
Changes to Independent contractor arrangements and establishing defences against “sham contracting”.
Modifications to the multi-employer bargaining framework, among other changes.

These changes are significant for employers and there are things employers should be actioning to ensure compliance. All employers should ensure they are up to speed with the changes and understand how their business is impacted.

If you would like advice about how these changes will affect your business or would like to understand how we can support your compliance and risk mitigation efforts, Edwards HR are more than happy to help – please contact our team on 07 3568 0866.

For more information about the changes, you can view updates on the Fair Work Ombudsman website here.