CLOSING LOOPHOLES – ACT 1, PART 2

Senior Associate, Kimberly Jones, has expertly outlined the latest updates stemming from this legislation, which have already begun to take effect, as of 15 December 2023.

The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (the Act) received royal assent on 14 December 2023. This followed the decision to split the bill (of the same name) into two parts, mainly to allow the less controversial parts of the proposed legislative changes to be passed first.

The changes will come into force at different times, with the following having commenced on 15 December 2023:

1. Small business redundancy exemption provisions;
2. Powers for the Fair Work Commission (Commission) to ensure that labour hire workers receive the same pay as other employees in the same role (same job same pay provisions);
3. Protections for those subject to family and domestic violence;
4. Workplace delegates’ rights provisions; and
5. Amendments to compulsory conciliation conferences in protected action ballot order matters.

In our previous article, we focused on the first 3 changes. In this article, we address the workplace delegates’ rights provisions and amendments to compulsory conciliation conferences in protected action ballot order matters.

Previous Article 

Other changes to the Fair Work Act will come into force, and we will detail these later.

There are also changes to workers’ compensation and workplace health and safety as part of the Closing Loopholes laws.

Workplace delegates’ rights provisions

Under the Fair Work Act 2009, workplace delegates are employees appointed or elected under the rules of an employee organisation who represent members of the organisation in the workplace.

The recent changes to the Act have introduced new rights and protections for these delegates. The changes protect the delegate’s right to:

1. Reasonable communication with members and potential members about their industrial interests;
2. Reasonable access to the workplace and its facilities to represent those industrial interests; and
3. Reasonable access to paid time during normal working hours for workplace delegate training if employed by a non-small business.

The changes also introduce new general protections for which penalties may apply. An employer must not:

1. Unreasonably fail or refuse to deal with the workplace delegate;
2. Knowingly or recklessly make a false or misleading representation to the workplace delegate; or
3. Unreasonably hinder, obstruct, or prevent the exercise of the rights of the workplace delegate.

There are exclusions from these protections, including where an employer is required to take the relevant action as a result of a state or federal law. This could include where an employer is required to take action to prevent the risk of harm from bullying conduct of a workplace delegate.

Compulsory conciliation conferences in protected action ballot matters

A protected action ballot is a secret vote by eligible employees on whether they want to take industrial action for a proposed enterprise agreement.

If the Commission has made a protected action ballot order about a proposed enterprise agreement, they are now required to make an order directing all bargaining representatives for the proposed agreement to attend a conciliation conference.

This change means that for the subsequent employee claim action or employer response action to be protected, the following people must have attended the conciliation conference:

1. The employee bargaining representatives who applied for a protected action ballot order; and
2. The employer and any bargaining representative of the employer.

Actions for Employers

Employers must keep up to date with recent and future changes to the Fair Work Act. The Fair Work Ombudsman website is a key initial resource, offering written explanations and examples, videos, timelines and an email subscription service.

Employers should also ensure any new enterprise agreement meets the current requirements. A relevant example is that agreements voted on or after 1 July 2024 must contain a term that provides for the exercise of the rights of workers’ delegates, as discussed above.

We suggest you seek legal advice if you are unsure about any of these changes and how they may apply to your business.

Contact us today by emailing Kimberly or calling us.

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*The information provided in this website serves as a general guide and does not constitute legal advice. It is based on our research and experience at the time of publication. Please consult our knowledgeable legal team for any specific inquiries or advice relevant to your circumstances, as the content may not have been updated subsequently.