More Fair Work Act Changes Passed

On 7 December 2023, an amended version of the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) passed both houses of Parliament.

The measures that were approved are listed below, which commence as soon as the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) receives royal assent (which is expected shortly), unless otherwise stated:

• excluding the operation of the small business redundancy exemption where a large business downsizes due to insolvency;

• closing the labour hire 'loophole', by allowing employees and employee organisations (unions) to apply to the Fair Work Commission for a regulated labour hire arrangement order requiring labour hire providers to pay their employees no less than under the host business' enterprise agreement;

• boosted workplace (union) delegate rights for employees;

• new protections against discrimination, including by prohibiting adverse action by an employer on the basis of an individual being affected by family and domestic violence;

• criminalising intentional wage and superannuation theft (commences on the later of 1 January 2025 and the day after the first time the Minister declares a Voluntary Small Business Wage Compliance Code under the Fair Work Act 2009 (Cth), and the requirement for the Fair Work Ombudsman to publish a compliance and enforcement policy and consult on guidelines);

• changes to the process for mediation and conciliation conferences in relation to protected ballot orders;

• expanding the remit of the Asbestos Safety Education Agency to deal with silica-related diseases;

• improving access to workers' compensation for first responders in the Commonwealth and ACT jurisdictions with post-traumatic stress disorder (commences partly on the day after Royal Assent, and partly 6 months later); and

• introducing the offence of industrial manslaughter under the Work Health and Safety Act 2011 (Cth) (commences on 1 July 2024).

The remaining proposed measures have been carved out into a separate bill to be debated in 2024, noting the Senate Education and Employment Legislation Committee is due to provide it's advisory report to the Senate by 1 February 2024. The Federal Government has said they are committed to proceeding with every remaining clause of the Bill at the earliest opportunity in the New Year, so it will be important for employers to be prepared. The remaining proposed measures include:

• changes in relation to casual employment;

• definition of employment;

• intractable bargaining workplace determinations; and

• regulated workers.

The Department of Workplace Relations are expected to publish updated factsheets upon royal assent, at the Closing Loopholes page. We will also provide an update when royal assent is received.

It is important that employers are aware of these changes and ensure compliance. Employers also need to be aware of and start preparing for the further changes expected early in the New Year. If your business requires assistance in understanding these changes and what you need to do in your business for compliance, please contact IR Legal Solutions.