Closing Loopholes Bill: partitioned and passed

18 December 2023

Following a deal with crossbench Senators Jacqui Lambie and David Pocock, the Senate split the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Bill) (reported on in our previous article). As a consequence, the first round of Closing Loopholes amendments to the Fair Work Act 2009 (Cth) (FW Act) was passed by both Houses of Parliament and received Royal Assent on 14 December 2023. These changes to the FW Act cover regulated labour hire, workplace delegates, criminalising wage theft and the introduction of an offence for industrial manslaughter, as well as family and domestic violence discrimination.

A second round of amendments will be considered early next year under the Closing Loopholes No.2 Bill and are likely to cover the remainder of the initial Bill, including casual employment, regulated workers, unfair contracts, enterprise bargaining, and sham contractor arrangements.

We summarise the key changes that have now been passed and proposed actions for employers in our latest information sheet.

Key changes include:

1. ‘Same Job, Same Pay’ for Regulated Labour Hire: giving the Fair Work Commission (FWC) the power to make orders requiring employers who provide their employees to work for a third party, described as a ‘regulated host’, to pay their employees the same pay as employees of the host who do the same kind of work.
2. Criminalising Wage Theft and Increased Penalties for Underpayments: significant changes to penalties for underpayments and new criminal offences for underpayments, as well as a new Voluntary Small Business Wage Compliance Code.
3. Work Health and Safety: introducing a Commonwealth industrial manslaughter offence and increasing maximum penalties.
4. PABO Conference Orders: clarifies that any employee bargaining representative who applies for a protection action ballot order (PABO) must comply with any order made under section 448A of the FW Act for a subsequent employee claim action to be protected.
5. Rights of Entry: a new process for worker representatives to enter a workplace with less than 24 hours’ notice to investigate underpayments.
6. Workplace Delegates: requiring enterprise agreements and modern awards to include delegates’ rights terms that entitle delegates to reasonable communication from employers.
7. Strengthening Protections against Discrimination for Family and Domestic Violence (FDV): stronger protections against discrimination for employees who have experienced, or are experiencing FDV.
8. Small Business Redundancy Exemption: provides an exemption to the operation of the small business redundancy exemption for insolvency under the FW Act.
9. Silica Safety and Related Diseases: broadens the functions of the Asbestos Safety and Eradication Agency to include coordinating action on silica safety and silica-related diseases.
10. First Responders: introduces a rebuttable presumption into the Safety, Rehabilitation and Compensation Act 1988 (Cth) for first responders who suffer from Post-Traumatic Stress Disorder.

This article was written with the assistance of Alexander Rench (Seasonal Clerk).