CLOSING 'LOOPHOLES': THIRD TRANCHE OF WORKPLACE RELATIONS LAWS 

Over the past year there have been two tranches of industrial and workplace relations reforms passed by Parliament.

Today, further details have been provided about a third bill, which will be introduced to Parliament on Monday, 4 September 2023.

The Minister of Employment and Workplace Relations, Tony Burke MP, addressed the National Press Club of Australia today on this upcoming third tranche of legislation. The Minister announced that the “Closing Loopholes Bill” would be introduced with the intention to close “the loopholes that undercut wages and conditions”.

Ahead of the Minister’s address, the Department of Workplace Relations and Employment conducted a consultation process on eleven key areas for reform which are likely to be included in the third tranche:

1. Amendments to the casual employee definition. This would empower the Courts to have regard to post contractual conduct when assessing whether an employee is a casual as well as new casual to permanent conversion processes.
2. Closing the labour hire loophole which includes changes to give effect to ‘same job, same pay’ obligations.
3. Criminalising wage theft. Importantly, this could include some level of criminalisation for underpayments that were not dishonest, but were reckless or negligent. This is a matter that BNSW and ABI have campaigned heavily against.
4. Introducing laws for employee-like work and allowing the Fair Work Commission to set minimum standards for employee-like workers
5. Give workers the right to challenge unfair contractual terms
6. Allow the Fair Work Commission to set minimum standards to ensure the road transport industry is safe, sustainable and viable
7. Provide stronger protections against discrimination, adverse action and harassment
8. A single national framework for labour hire regulation, which could be implemented in place of existing state and territory schemes
9. Address the impact of the small business redundancy exemption in winding up scenarios to support equitable outcomes for claimants under the Fair Entitlements Guarantee
10. Reforms to enterprise bargaining provisions to close loopholes:
    1. a.     The Fair Work Commission issuing model terms for enterprise agreements
    2. b.     Preserve arrangements for employers already using single interest agreements
11. Repeal demerger from registered organisations amalgamation provisions.

Business NSW provided feedback during the consultation process by providing its own submissions to the Department and has also provided feedback through the Australian Chamber of Commerce and Industry.

During the Minister’s address to the National Press Club today, the Minister provided some insights into what some of these reforms may look like. The Minister addressed four loopholes:

1. Criminal wage theft offences would be introduced where an employer intentionally underpays an employee.  Importantly, no mention was made of reckless or negligent underpayment.
2. A new process of casual conversion would be introduced so that after six months employees can request conversion to a permanent role. This is a departure from current conversion laws that operate after 12 months.
3. Businesses with enterprise agreements will have to provide the same pay conditions offered in their enterprise agreement to labour hire workers.
4. The Fair Work Commission will be empowered set minimum standards and deal with ‘deactivation disputes’ for individuals who receive work from a digital platform and are “employee-like”. Employee-like will be determined with reference to whether the individual has low levels of control, bargaining power and wages.

In relation to the reforms on employee-like forms of work, the Minister stated that food-delivery apps, rideshare and the apps used in the care economy would be captured by the reforms. However, work derived from Facebook, a Whatsapp group or Airtaskeer are not intended to be covered by the reforms.

The reforms proposed by the Closing Loopholes bill are expected to create new and significant burdens on business in a variety of areas and BNSW and ABI will be providing further feedback to seek to mitigate against the most serious of these consequences on business (including small business employers).

ABLA represented Business NSW and Australian Business Industrial to provide feedback during the consultation process by providing submissions to the Department. Through its relationship with the Australian Chamber of Commerce and Industry, ABLA was in a position to further contribute to the development of the reforms.

We intend to issue a further and more detailed alert once the legislation is tabled in Parliament on Monday 4 September.