More Changes to IR Laws Unveiled

On Monday 4 September 2023 the Albanese Labor Government introduced to Parliament the third tranche of reforms to workplace relations laws.  Workplace Relations Minister, Tony Burke, said the Fair Work Legislation Amendment (Closing Loopholes) Bill was about “closing loopholes that undercut pay and conditions for workers.” 

Wage theft

Employers convicted of intentional wage theft will face up to 10 years in prison.  Additionally, fines of up to three times the amount of underpayment can be imposed by a court.  Minister Burke said that employers who take reasonable steps to pay the correct amounts, or who make honest mistakes, will not be criminally prosecuted.

The Fair Work Ombudsman will be able to strike cooperation agreements with employers who self-report underpayments.  For small business employers, a new Voluntary Small Business Wage Compliance Code is intended to ensure small business employers can’t be pursued in a criminal sense if they take appropriate steps to comply with the law.

Casual engagements

The Bill also deals with what the Minister described as an “unfair loophole” where an employee is treated as a casual against their wishes, even when working like a permanent worker.  The Minister said:

A casual will still be defined as someone who does not have a firm advance commitment to continuing and indefinite work, but the bill will enable employees and their employers to look at what’s really happening, not just what their contract says. Employees will be able to notify their employer that they wish to be permanent if they believe they no longer meet the casual definition.

Providing certainty to business, casual employees will remain casual unless they actively choose otherwise; and where an employee chooses to become permanent, no back pay will accrue...

The Fair Work Commission will have the ability to resolve any disputes, including through arbitration as a last resort or in exceptional circumstances.

The bill also prohibits ‘sham’ casual arrangements, which will stop employers deliberately and unreasonably misrepresenting to an employee that their employment is casual when it is not.

Labour hire

The Bill targets labour hire arrangements by empowering the Fair Work Commission to make orders requiring labour hire workers to be paid at least the minimum rates in a host business’s enterprise agreement. This measure will not apply to host employers which are small business employers or to independent contractors or to training arrangements.

Other features

The Bill deals with other matters including the introduction of minimum standards for gig workers, introducing an offence for industrial manslaughter, increased rights for workplace delegates (i.e. union delegates), and the setting of minimum standards for the road transport industry.

The Bill will be debated in the House of Representatives over the next month.