In case you missed it …

The most recent Fair Work Legislation Amendments

Key Timeline:

4 September 2023: Introduction of the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023.

7 December 2023: Announcement of the Bill’s split.  Originally a single bill, it was divided into two parts in response to feedback.

The first tranche, already enacted, includes amendments to the Fair Work Act concerning small business redundancy, Labor hire arrangements, and rights of workplace delegates, among others.

The second tranche, yet to be debated, covers casual employment and employment definitions.

15 December 2023: Enactment of the first tranche.

1 February 2024: Senate advisory report on the remaining measures.

1 November 2024: Commencement of the Fair Work Commission’s Regulated Labour Hire Arrangement Orders.

1 January 2025 (or later): Expected commencement of the wage theft legislation.

First Tranche – need to know

Changes in Redundancy Regulations:

The amendments modify the conditions under which small businesses are required to pay redundancy, particularly during insolvency. Employers need to be aware of these changes to ensure compliance and avoid financial repercussions.

The bill clarifies the small business redundancy exemption, particularly around businesses becoming small due to bankruptcy or liquidation-driven terminations. It addresses an existing anomaly, ensuring fair treatment for later-made-redundant employees.

Regulations on Labour Hire Workers:

This significant change are designed to ensure pay equality for workers performing the same role, regardless of their employment relationship with the host business.

The legislation mandates that labour hire employees must be paid the same minimum wages as if they were directly employed by the host employer. This change requires employers using labour hire workers to carefully review and possibly adjust their wage structures to meet this requirement.

Workplace Delegates:

Workplace delegates, (employees who are also representatives of a union) are accorded enhanced rights. From 15 December 2023, these changes include:

• reasonable access to employees (union and non union members) for communication on industrial matters,
• access to workplace facilities, and
• paid training time (only small businesses are exempt from providing paid training leave).

These reforms are significant as they empower workplace delegates in their representation and involvement in industrial relations, thereby strengthening the role of unions in workplaces.

Employers should be aware of the new rights, and cautions to ensure any disciplinary actions, terminations, or changes in employment conditions are not influenced (or misconstrued as influenced) by the employee’s union activities or roles.

Adverse action risks for workplace delegates may come into sharper focuse as the practical effects of these enhanced rights are felt. If an employee lodges a workplace grievance, it’s advisable for employers to seek legal or professional advice before taking any action that could be perceived as adverse. This might include termination, demotion, or any other action that could disadvantage the employee. The key is to ensure that any employment-related decisions are made for legitimate business reasons, not for reasons related to the employee’s engagement in protected industrial activities or their role in a union.

Stricter Rules on Wage Theft:

The wage theft legislation criminalizes deliberate underpayments, with severe penalties for offenders. However, it distinguishes between deliberate wage theft and honest mistakes, offering rectification pathways for the latter. Small businesses complying with the Voluntary Small Business Wage Compliance Code receive additional protections.

The Voluntary Small Business Wage Compliance Code, mentioned in the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023, is designed to provide additional protections for small businesses in the context of the wage theft legislation. This code will be developed in partnership with employer and employee groups and aims to outline clear guidelines for small businesses to ensure compliance with wage regulations. Small businesses adhering to this code will be afforded certain protections under the wage theft legislation, recognizing the unique challenges and circumstances they face. The code is a key part of the legislative framework, balancing the need to prevent wage theft with the practical realities of small business operations.

The Voluntary Small Business Wage Compliance Code is expected to be introduced by 1 January 2025. By adhering to this code, small businesses can safeguard themselves against the new sanctions. It’s an important aspect of the bill, balancing the need to prevent wage theft while considering the unique challenges faced by small businesses​

Discrimination Protections:

Enhanced anti-discrimination measures effective from 15 December 2023 protect employees from adverse actions due to experiences of family and domestic violence.

Right of Entry:

Officials of registered organizations no longer need a Fair Work entry permit for assisting health and safety representatives, facilitating easier access to expertise in addressing workplace safety issues.

Compulsory Conciliation Conferences:

These are crucial for protected industrial action, such as strikes. Amendments have streamlined the requirement for attendance at these conferences.

Conclusion: As the Fair Work Legislation Amendment continues to reshape Australian employment law, it’s essential for businesses and employees to understand and adapt to these new legal requirements for maintaining fair workplace practices.