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Part One of the Closing Loopholes Bill passes Parliament with changes to commence shortly

On 4 September 2023, the Labor Government introduced the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 to Parliament, aimed at closing the ‘loopholes’ in current workplace laws which the Government says are being used to undermine the security of wages and working conditions of workers.

On 4 September 2023, the Labor Government introduced the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Closing Loopholes Bill) to Parliament, aimed at closing the ‘loopholes’ in current workplace laws which the Government says are being used to undermine the security of wages and working conditions of workers.

On 7 December 2023, it was announced that the Closing Loopholes Bill will be divided into two parts, with the first tranche of amendments passing both Houses and commencing very shortly (Closing Loopholes No.1 Bill).

The Closing Loopholes No.1 Bill will introduce the following key changes to the industrial relations system:

  • closing the ‘loophole’ in which large employers claim the small business redundancy exemption under the Fair Work Act 2009 (Cth) (FW Act) in circumstances where they have incrementally downsized due to insolvency;
  • closing the ‘labour hire loophole’ under the FW Act by introducing new ‘same job, same pay’ provisions allowing the Fair Work Commission to make an order that employees working under a labour hire arrangement are paid no less than the rate of pay under the host employer’s enterprise agreement;
  • strengthening protections against discrimination by amending the FW Act to include a new protection from adverse action for employees and prospective employees who have been subject to family and domestic violence;
  • criminalisation of intentional wage theft and superannuation theft under the FW Act, with the introduction of a small business code of conduct in support;
  • amending the Work Health and Safety Act 2011 (Cth) to criminalise the offence of industrial manslaughter and increasing penalties for contraventions;
  • introducing greater support for first responders with post-traumatic stress disorder under the Safety, Rehabilitation and Compensation Act 1998 (Cth);
  • expanding the functions of the Asbestos Safety and Eradication Agency to include silica safety and silica-related disease;
  • strengthening workplace delegates’ rights under the FW Act, the modern awards and enterprise agreements, including by inserting a new general protection under the FW Act specific to workplace delegates;
  • clarifying the class of employee bargaining representatives captured by the requirement to attend a conciliation conference or mediation with respect to protected action ballot orders, as well as the circumstances in which an employer can engage in employer response action; and
  • clarifying the rules under the FW Act regarding entry to relevant workplaces in order to lawfully assist a health and safety representative on request under a provision of a State or Territory occupational health and safety law.

The balance of the measures will be debated in early 2024 under the new Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 (Closing Loopholes No.2 Bill). These measures will seek to address (but are not limited to):

  • the definition of “casual employment” and “employment” under the FW Act;
  • minimum standards for regulated workers (including gig workers and truck industry workers) under the FW Act and the Independent Contractors Act 2006 (Cth);
  • intractable bargaining workplace determinations under the FW Act; and
  • sham agreements under the FW Act.

We will keep you informed as to how the remaining changes under the Closing Loopholes No.2 Bill progress in Parliament as well as the date that the Closing Loopholes No. 1 Bill comes into effect.

As always, we are here to help our valued clients as they navigate these changes to the workplace relations system. Please do not hesitate to reach out to our Directors at sydney@workplacelaw.com.au or you can call us at (02) 9256 7500.

Information provided in this news alert is not legal advice and should not be relied upon assuch. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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