Employers at odds over Government’s desired casual employment changes

After suffering a set-back in September when potential passage of its Fair Work Legislation Amendment (Closing Loopholes) Bill was delayed until next year (see our related article), the Albanese Government has continued to refine the proposed legislation, agreeing to adjust provisions – to varying degrees – pertaining to the ‘same job, same pay’ stipulations for labour-hire workers; protections for gig workers; and, desired changes to casual employment.

Following developments in early-December (discussed below), the Loopholes Bill has been split into two parts, with the more controversial elements surrounding gig workers and casual employment to be held over to 2024, forming the re-badged Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023.

IR Minister, Tony Burke, flagged the Government’s intent to refine the existing casual conversion provisions (introduced by the Morrison Government in 2021) back in July, at the time indicating a desire to “close the loophole that leaves people stuck as casuals when they actually work permanent regular hours”. Minister Burke was also quoted as saying that the Government wished to redefine casual employment, favouring “what the definition always was before [the Morrison Government legislated it]”, which looked at “whether or not you were in fact working as a casual or whether in fact you were working permanent hours” (see our related article).

Further to consultations in late-October, the Australian Hotels Association (AHA) trumpeted concessions made by Minister Burke that employers will purportedly be permitted to continue to offer systemic regular casual employment to workers who are happy with it – meaning casual employees who work regular and systematic hours but want to remain employed as casuals long-term will be free to do so – while the Government will also remove the proposed civil penalty provision for misrepresentation of casual employment.

Although AHA heralded its “constructive” approach to negotiations regarding the desired changes to casual employment, the Chief Executive of the Australian Chamber of Commerce & Industry (ACCI), has described the ‘Loopholes’ Bill as “fundamentally flawed”, adding the proposed legislation, “needs to be completely redone, not patched up with piecemeal amendments”. A joint letter penned by ACCI along with other employer bodies went as far as labelling the Government’s agreed refinements as “simply an attempt at trying to patch a sinking boat with a Post-it note”. Separately, legal advisers to the Minerals Council have expressed concern that the minor adjustments will do almost nothing to address employer concerns surrounding the intended casual employment changes.

Upon the passing of the ‘Loopholes Bill No. 1’ (discussed below), Independent Senator, Jacqui Lambie, confirmed that these more complex changes are “a long way from being given a free pass” and will receive close scrutiny when examined in more detail next year.

Part 1 of ‘Loopholes’ Bill passes both Houses

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.