Third tranche of desired IR changes delayed to 2024

This article contains updates as of 7 December 2023.

In September, the Albanese Government introduced its third wave of proposed workplace law reform to Parliament in the form of the Fair Work Legislation Amendment (Closing Loopholes) Bill (see our related article). After having initially been hopeful of securing passage of the Bill this year, the Government’s hopes have been dashed, with the proposed legislation being referred for a Senate inquiry subject to a report deadline of 1 February 2024.

Workplace Relations Minister, Tony Burke, has previously stated the proposed legislation is designed to shut down avenues businesses are using “to undercut Australia’s best employers in a race to the bottom” by closing loopholes that allow for the undermining of pay and conditions. Elements of the Bill focus on:

  • strengthening penalties for wage theft to include potential prison terms;
  • making industrial manslaughter a crime with individuals facing imprisonment for up to 25 years and body corporates fines of up to $18 million;
  • introducing ‘same job, same pay’ stipulations for labour-hire workers;
  • enshrine a definition of “employee” based on the former common law test, being the reality of a working relationship rather than just the contractual terms;
  • introduce an additional “employee-like” category for certain digital platform gig workers to enable the Fair Work Commission to set minimum standards, and to weigh into unfair “de-activations”; and
  • include new protections for domestic violence victim-survivors against workplace discrimination by making it a protected attribute under the Fair Work Act 2009.

Whilst Opposition IR spokeswoman, Senator Michaelia Cash, conceded the Bill was likely to eventually be passed, she recommended the inquiry reporting date of February 2024, to enable proper scrutiny of the proposed changes. The delay was also supported by Independent Senator David Pocock, along with Tasmanian Jacqui Lambie Network Senators, Jacqui Lambie and Tammy Tyrell, and One Nation’s, Malcolm Roberts.

Public hearing dates have been scheduled across Australia between October 3 and November 22.

UPDATE – Part 1 of ‘Loopholes’ Bill passes both Houses

Following developments in early-December, the Loopholes Bill was split into two parts, with the more controversial elements pertaining to ‘same job, same pay’ for labour-hire, the gig economy and casual employment to be held over to 2024, forming the re-badged Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023.

On 7 December 2023, the Government successfully negotiated the passing of a substantial portion of the ‘Loopholes’ Bill (re-badged as the ‘Closing Loopholes Bill No. 1’) before both Houses of Parliament. The legislation that passed encompassed non-contentious elements such as, making it easier for emergency service workers to claim for PTSD; protecting family and domestic violence victims from adverse action by their employers; protecting redundancy payments for workers who might be working for larger businesses that have become technically a small business due to insolvency; and, bringing silica into line with asbestos under the Asbestos Safety and Eradication Agency, including coordination on silica safety and silica related diseases.

In addition, ‘Part 1’ of the legislation will also stop companies underpaying workers through the use of labour hire; criminalise intentional wage and superannuation theft; and introduce a new criminal offence of industrial manslaughter.