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CLOSING LOOPHOLES – ACT 1

Senior Associate Kimberly Jones has expertly outlined the changes that have started to take effect from 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.

We will focus on the first 3 changes in this article.

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

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

Small Business Redundancy Exemption

Section 121 of the Fair Work Act gives an exemption to small businesses (with under 15 employees) from the requirement to pay redundancy pay.

The Act has introduced a new provision that limits the small business redundancy exemption. The exemption will not apply if the employer has become a small business employer due to the termination of one or more employees in certain circumstances in the context of bankruptcy or liquidation.

Labour Hire Arrangements

The Act introduced new types of orders (regulated labour-hire arrangement orders) that employees, unions, and host employers can apply to the Commission for, relating to labour-hire arrangements.

When one of these types of orders applies, a labour-hire employer generally must pay their employees supplied to a host employer at least the same rate they would receive under the host employer’s enterprise agreement (or other applicable instrument).

There a several exclusions to the ‘same job same pay’ requirements for labour-hire workers, and the Commission cannot make an order if:

  1. It is not fair and reasonable in the circumstances;
  2. The arrangements are for a service to be provided rather than the supply of labour to a host employer; or
  3. The host employer is a small business employer.

The earliest date a ‘regulated labour-hire arrangement order’ can come into force is 1 November 2024.

Family and Domestic Violence Protections

The general protection provisions of the Fair Work Act are designed to ensure that employees are treated fairly in the workplace, including by protecting them from discrimination.

These recent changes strengthen protections for those experiencing family and domestic violence, by specifically prohibiting employers from taking adverse action (including dismissal) against employees because they are or have been victims of family and domestic violence.

Awards and enterprise agreements must also now not include terms that discriminate against an employee because they’re experiencing (or have experienced) family and domestic violence.

Actions for Employer

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.

Employers should also ensure that they review their employment arrangements, processes and procedures, and employee documentation, to ensure that they are meeting current requirements, and do not breach any Fair Work provisions.

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

Contact us today by emailing Kimberly Jones at kimberly.jones@hhg.com.au or calling us on (08) 9322 1966.

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*This information 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.

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