Change is Coming – Closing Loopholes Act Now in Effect

The Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 received royal assent on 14 December 2023.  The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 is now in force and has introduced changes from 15 December 2023 as well as further changes due to commence in 2024 and 2025. Employers should be aware of these changes and their date of operation.

As of 15 December 2023, the changes are as follows:

Small Business Redundancy Exemption Provisions

Small business redundancy exemption provisions have been introduced. These include new rules regarding redundancy payment exemptions for non-small business employers that have downsized to small business employers during bankruptcy or liquidation. Specifically, this is designed to safeguard redundancy payments for workers who have worked for larger businesses that have become small businesses due to insolvency.

Regulated Labour Hire Arrangement Jurisdiction

There is now a regulated labour hire arrangement jurisdiction which will allow the Fair Work Commission to receive applications and make orders for labour hire workers to be paid the same as direct employees of a business. Although the jurisdiction is already in effect, please note that any orders made as a result of it prior to 1 November 2024 will only commence operation from 1 November 2024.

Family and Domestic Violence Protections

There are new protections against discrimination and adverse action for employees who have experienced family and domestic violence. Specifically, family and domestic violence has been included as a protected attribute, meaning that an employer must not treat an employee less favourably on the basis of this attribute.

Right of Entry Permit Exemptions

The requirement for a Right of Entry permit for union officials will be removed if they are assisting a State or Territory Work Health and Safety Representative. However, this change will be reviewed in 9 months’ time.

Rights for Union Delegates

There will be new rights provisions for union delegates which includes the right to reasonable communication with their members, reasonable access to the workplace and workplace facilities, and reasonable paid time off for union delegate training. When considering what is ‘reasonable’ the size, resources and facilities of the employer will be considered.

Asbestos Safety and Eradication Agency Functions to Extend to Silica

The Asbestos Safety and Eradication Agency (‘ASEA’) previously worked to eliminate asbestos-related diseases through safety regulation, education and control. The functions of the (‘ASEA’) will be expanded to include silica-related diseases. As a result of this change ASEA will now be called the Asbestos and Silica Safety and Eradication Agency (‘ASSEA’).

Streamlined Workers’ Compensation Claims Process for some First Responders

The workers’ compensation claims process will be streamlined for certain first responders who have experienced post-traumatic stress disorder. This will apply to the Australian Federal Police, ambulance officers, paramedics, emergency services communications operators, firefighters and members of the Australian Border Force. The changes will include a clear pathway and reverse onus of proof. These changes do not affect state and territory workers’ compensation schemes.

Rights for Union Delegates

The changes to Union Delegate Rights outlined earlier in this article will need to be incorporated into modern awards, enterprise agreements and workplace determinations. However, it will only apply to enterprise agreements voted on from 1 July 2024, and will not require retrospective amendments to existing agreements.

Industrial Manslaughter

Industrial Manslaughter will be a criminal offence under the Work Health and Safety Act 2011. Specifically, if a person who is conducting a business breaches a health and safety duty by engaging in unsafe conduct, and that conduct causes the death of an individual through recklessness or negligence, that person may receive a penalty of up to 25 years imprisonment. Alternatively, where the offence is committed by a body corporate, the penalty may be a fine of up to $18,000,000.00.

New Wage Theft Provisions

New wage theft provisions will apply that criminalise intentional wage underpayments and a failure to pay superannuation. Penalties for such offences may include up to 10 years’ imprisonment and/or fines of up to $1,565,000.00 for individuals or up to $7,825,000.00 for companies. If the underpayment amount multiplied by three is greater than the maximum penalty, a court will also be able to order fines greater than the maximum penalty.

During the month of January 2025, a Voluntary Small Business Wage Compliance Code will also be made available to small business employers, which may protect smaller employers from these new sanctions. If the Fair Work Ombudsman is satisfied that a small business employer acted in accordance with the Voluntary Small Business Wage Compliance Code, then the employer will not be liable for criminal prosecution.

Debate is currently underway regarding the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023, which includes further proposed amendments. These amendments include changes to casual employment, sham arrangements, gig economy, the road transport industry, intractable bargaining workplace determinations and other areas. Further details will be provided if the bill is enacted.

It is important for employers to consider the applicable changes brought into effect by The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 and review their business practices to ensure compliance. The most far-reaching change for employers is anticipated to be the changes affecting the Labour Hire Industry. Employers should anticipate further changes arising from the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023.

If you would like to know more about the closing loopholes legislative changes and the impact on your business, please contact us and a workplace strategist will be in contact within 24 hours.