The Albanese Labor Government has introduced the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023  (the Bill) to Parliament which will significantly amend the Fair Work Act 2009 (Cth). 

The National Retail Association has published a detailed factsheet unpacking the proposed changes in the “Closing Loopholes” Bill that members can access for FREE here 

The Bill proposes the following changes: 

  • Criminalisation of Wage Theft – The Bill introduces a new criminal offence for intentional wage theft, including related offence provisions for ancillary liability. Penalties include up to 10 years imprisonment and court-imposed financial penalties up to three times the value of the wage underpayment. The Bill sets out ‘safe harbour’ provisions for employers in certain circumstances. 
  • Re-defining ‘Casual Employees’ – The definition of ‘casual employee’ in the Fair Work Act 2009 (Cth) will change and the Bill proposes to introduce indicia to aid in the assessment of whether an employee is a casual employee or not, including whether there is a regular pattern of work. 
  • Casual Conversion – In addition to the existing provisions that require employers to offer conversion to eligible casual employees, casual employees will also be able to notify their employer they no longer wish to be casual if they think they no longer fit the definition. The Bill provides a new legislative pathway to full-time or part-time employment for casual employees who no longer believe they are casual employees and will set out rules for how an employer must respond to an employee notification seeking a change in their employment status. 
  • Labour Hire – One of the stated aims of the Bill is to protect bargained wages in enterprise agreements from being undercut through the use of labour-hire workers. The Bill gives the Fair Work Commission (FWC) the power to make a ‘regulated labour-hire arrangement order’ which would ensure labour-hire workers be paid no less than if they were employed directly. There are certain exemptions built into the Bill, including where the host employer is a small business, where a training arrangement applies to the employee, or where the employee is engaged for less than 3 months. 
  • Family and Domestic Violence – The Bill introduces a new protected attribute to protect workers who have been, or who continue to be, subjected to family and domestic violence. 
  • Minimum Standards for Gig Workers – The Bill will allow the FWC to set fair minimum standards for ‘employee-like’ workers, including in the gig economy. Employee-like workers will also be able to seek reactivation or reinstatement where they have been ‘unfairly deactivated’ or removed from a platform.  
  • Workers in the Road Transport Industry – The Bill will give the FWC the power to make a “road transport industry contractual chain order” conferring rights and obligations on persons connected with the road transport industry who are NES employers and employees, or regulated road transport contractors and businesses. These orders may have the potential to be made against retail employers who engage with regulated road transport contractors. It will empower the FWC to make minimum standard guidelines, register consent agreements, provide contractors remedies for unfair termination of services contractsand deal with disputes between participants (including independent contractors). 
  • Sham Contracting – The Bill proposes to change the defence to misrepresenting employment as an independent contractor arrangement, known as ‘sham contracting’ from a test of ‘recklessness’ to one of ‘reasonableness.’ 
  • Compliance Notices Issued by the Fair Work Ombudsman – The Bill clarifies that Fair Work Ombudsman compliance notices can require an employer to calculate the amount of an underpayment that is owed to an employee and that a court can order the recipient of the notice to comply with its terms. 
  • Union Delegate Rights – The Bill proposes a framework for delegates’ rights, including protections for workplace delegates when seeking to exercise those rights. 
  • Criminalisation of Industrial Manslaughter – For self-insured licensees covered by the federal Work Health and Safety Act 2011 (Cth), the Bill introduces a new offence of industrial manslaughter where a person engages in conduct causing the death of an individual, and was reckless or negligent as to whether their conduct would cause the death. Penalties are $18 million for bodies corporate and 25 years imprisonment for individuals. 
  • Further Amendments to Enterprise Bargaining – The Bill makes further amendments to bargaining by enabling multiple franchisees of the same franchisor to make a single-enterprise agreement whilst retaining the ability to make a multiple enterprise agreement. Additionally, supported bargaining and single-interest agreements will be able to be replaced by single-enterprise agreements at any time where certain conditions are met. Finally, the FWC will be able to make and vary enterprise agreement model terms for flexibility, consultation, and dispute resolution. 

If you have any questions regarding the ‘Closing Loopholes’ Bill or the proposed changes, please call our Workplace Relations Hotline on 1800 RETAIL (738 245).