Insights & News

February 6, 2024

In this article, Geoff Fowlstone, founder of strategic communications firm Fowlstone Communications, specialising in crisis management, media relations, investor relations, government affairs and internal communications and Shelley Williams, a Partner in Kingston Reid’s Brisbane office, provide practical insights on how reporting Australian organisations can prepare for the publication of gender pay gap data later this month.

The issue of gender pay equity is never far from the public agenda but is now poised to rise to the fore of national headlines, courtesy of the inaugural release of the Workplace Gender Equality Agency’s (WGEA) gender pay gap analysis.

On 27 February 2024, for the first time, WGEA will publish private sector gender pay gap data of employers with more than 100 employees. This development comes as part of a raft of legislative changes introduced in 2023 intended to address Australia’s gender pay gap (currently 21.7%, according to WGEA’s employer census data as at November 2023).

Every Australian company that falls within this category needs to have a plan to respond to the imminent release of this first ever look ‘under the hood’ at gender pay performance, across a vast cross section of industries and occupations. This will create a minefield of legal and reputation challenges for organisations who may (depending on the data) be seen to be laggards in gender pay performance, some quite unfairly.

As Mark Twain famously opined “There are three kinds of lies: Lies, Damned Lies, and Statistics”.

WGEA’s methodology can best be described as blunt (average pay for men divided by average pay for women) and leaves little room for context. For example, there is no differentiating between industries across different Australian states and territories, and different organisational or remuneration structures.  The United Kingdom, by contrast, takes a more nuanced approach, reporting in quarterly bands, based on seniority.

WGEA will not differentiate between, for example, a consulting firm with a high level of junior support roles (typically dominated by women) and a manufacturing business which does not.  This is hard to defend in a sound bite!

However, employers will be given the opportunity to provide an Employer Statement which explains their gender pay gap results. This will need to be carefully considered and drafted to provide much- needed context, which will otherwise be missing without any public statement.

The data will also not pay heed to shifts in performance over time, that is, those organisations which acknowledge they have a gender pay gap issue and are making inroads to address it.  Implementing meaningful change takes time to gain traction.

Importantly, WGEA is not reporting on pay equity (that is, do men and women at the same level of seniority get paid equivalent amounts) which many regard as a more insightful measure.

The Workplace Gender Equality Act 2012 (Cth) (which governs WGEA and its functions), contains provisions relating to employer non-compliance with the Act. The only power WGEA has under the Act is to name and report non-compliant employers publicly and to the Minister for Women, (currently Katy Gallagher). Any attempt to avoid the reporting obligations or potential public scrutiny will therefore be misguided.

The experience in the United Kingdom, where mandatory gender pay gap reporting has been in place since 2017, provides some useful insights into what issues arise and how organisations can prepare.

Firstly, the publication of the data generated strong media interest sparking a fresh debate on gender pay.  Companies which had never before seen public profile suddenly found themselves in the limelight and under pressure to explain their performance.  This included Australian companies with a large UK employee cohort.

Secondly, industries which performed poorly received significant focus, with a detailed trawling through the results and analysis of the drivers of underperformance.

Organisations that responded effectively were prepared well in advance and had a simple narrative to explain their results and place them in the most effective context.

Australian companies preparing to face the gender pay blowtorch need to focus on five key things:

• Demonstrate clearly, with language and actions, that they are taking gender pay equity seriously and that it is a priority across the organisation, with positive examples that support this contention.
• Have a clear statement about the support for these changes at the most senior levels of management. People need to see that this is not a ‘lip service’ attempt to deflect the issue and that there is buy-in at the highest levels of the organisation.
• Communicate strategies in place to address this issue over time and, where possible, show how these are delivering measurable outcomes over time.
• Have a plan in place well in advance – organisations need to consider who is important to communicate with and the most effective strategy to engage. For example, employees, customers, suppliers, strategic partners.
• Consider and plan for the possibility of an increase in discrimination complaints and general protections applications following the release of the gender pay gap data. While the data will provide an overall organisational score, employees now have a workplace right to ask other employees about what they get paid and there is also a prohibition on pay secrecy. This means these different data sets could be used by an employee to form the view that they are paid less than their colleagues at the same level of seniority based on their gender.

If you would like to learn more about these changes and how you can best position your organisation to respond to the publication of gender pay gap data on 27 February 2024, please contact us for further information.

 

Shelley Williams, Partner, Kingston Reid +61 439 268 928 [email protected]

Geoff Fowlstone, Principal, Fowlstone Communications +61 413 746 949 [email protected]

December 12, 2023

At the beginning of 2023, we wrote that the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act) (which was passed in December 2022) represented the “most substantial reforms to workplace legislation in over a decade”. That statement may have been premature.

On 7 December 2023, the Government passed several parts of the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Bill), which includes significant labour hire reforms, expanded union delegate rights and the introduction of a federal wage (and superannuation) theft offence, amongst other changes. These changes will result in a significant change for many businesses. Some of these changes will come into effect almost immediately.

In this insight, the Kingston Reid team take a closer look at each of the key areas of reform that have been passed and what they mean for employers.

 

Same Job, Same Pay

Regulated labour hire arrangement orders

The new labour hire provisions create a right for various parties to apply to the Fair Work Commission (FWC) for a regulated labour hire arrangement order (RLHAO).

The FWC must make a RLHAO if:

1. an employer supplies or will supply, either directly or indirectly, one or more employees of the employer to a host to perform work for the host;
2. a ‘covered employment instrument’ – generally an enterprise agreement – that applies to the host would apply to the employees if the host employed the employees directly to perform work of that kind; and
3. the host is not a small business employer.

If a RLHAO is made by the FWC, the employer cannot, subject to limited exceptions, pay its employees less than the relevant rate of pay which would apply to the employee under the host’s covered employment instrument. The rate of pay is the full rate (including bonuses, loadings, allowances, overtime and penalty rates).

RLHAOs can take effect on or after 1 November 2024.

A host employer must give notice of the RLHAO to any employer covered by an RLHAO and must, at the request of the employer, provide information to the employer to enable the employer to determine the rate of pay to be paid.

Where an enterprise agreement that is the subject of an RLHAO is replaced, or a new labour hire employer is engaged, the host must apply to the FWC for a variation of the RLHAO to apply in those new circumstances.

Some exceptions apply

Employers will not need to comply with RLHAO to the extent it captures employees to whom training arrangements are in place. Employees performing work for the host for less than 3 months will also fall outside the scope of a RLHAO.

Hosts, employers, employees and unions can apply to the FWC for extended exemption periods and can also apply for the exemption periods to be reduced (even down to no exemption period applying). These applications will only be granted if the FWC is satisfied that there are exceptional circumstances that justify making a variation to the general 3 month exemption.

RLHAO must be fair and reasonable in the circumstances

The FWC must not make a RLHAO if it is not satisfied that it is fair and reasonable in all the circumstances to make a RLHAO. There are a variety of matters for the FWC to consider, including:

• pay arrangements;
• the nature and scope of the host’s covered employment instrument;
• the history of industrial instruments applying to the host and employer;
• the terms and nature of the arrangement under which the work will be performed (including duration of the arrangement, location where the work is being performed, number of employees performing the work, and industry where the work is being performed); and
• any other matter the FWC considers relevant.

Service based contractors

The saving grace of the recent amendment package relates to service-based contractors. Such entities are excluded from the RLHAO regime, however a party relying on such an exclusion would need to satisfy the FWC that the arrangement is one for the provision of a service, and not the supply of labour.

In order for the exemption to apply, the following will be considered:

• the involvement of the employer in matters relating to the performance of the work;
• the extent to which, in practice, the employer or a person acting on behalf of the employer directs, supervises or controls (or will direct, supervise or control) the regulated employees when they perform the work, including by managing rosters, assigning tasks or reviewing the quality of the work;
• the extent to which the regulated employees use or will use systems, plant or structures of the employer to perform the work;
• the extent to which either the employer or another person is or will be subject to industry or professional standards or responsibilities in relation to the regulated employees;
• the extent to which the work is of a specialist or expert nature.

It will be important that employer assess their work arrangements against this criteria to consider whether they are exempt from the labour hire scheme.

Alternative Protected Rate of Pay Orders

If the FWC makes a RLHAO, or a party has applied to the FWC for a RLHAO, a second application can be made for an alternative protected rate of pay order (APRPO).

The effect of an APRPO is that instead of applying the rates of pay in the host’s covered industrial instrument (which would cover the employees if they were employed by the host), the FWC can order that the rates payable are the rates that exist in an industrial instrument (again, generally an enterprise agreement) that applies to:

1. a related entity of the host and would apply to a person employed by the related entity to perform the relevant work; or
2. the host and would apply to a person employed by the host to perform the relevant work in circumstances that do not apply to the employees covered by the RLHAO.

The FWC will be empowered to deal with disputes about RLHAOs, including by arbitration. Before the FWC gets involved, parties to the dispute must attempt to resolve the dispute at a workplace level.

Anti-avoidance provisions

Anti-avoidance provisions have been included centring around arrangements and schemes being entered into which preclude or restrict the FWC’s ability to make RLHAOs, whether or not those schemes would otherwise be enforceable.

An employer must not try to enliven the exemption that an RLHAO will not apply to work of less than 3 months by engaging different employees to perform the same or similar work, while a host must not enter into such short-term arrangements where different people perform the same or substantially the same work in order to avoid the requirement of the employer to pay the required rate of pay. Employees should not be terminated and reengaged as independent contractor in order to avoid the provisions.

The anti-avoidance provisions apply retrospectively from the date the Bill was introduced. That is, from 4 September 2023. This means that employers or hosts should not be taking steps to try any avoid the operation of the labour hire provisions.

Key takeaways

• One of the requirements the FWC must be satisfied of before making a RLHAO is that the ‘employer supplies or will supply, either directly or indirectly, one or more employees of the employer to a regulated host to perform work for the regulated host…’

Where an application for a RLHAO is made, a party will have to actively resist an application for a RLHAO if the employer is providing a service, rather than labour to the host.

At this stage, there is no scope for the employer to make or be notified of an application for an RLHAO. It is yet to be seen the scope of their involvement as a respondent or someone named in the RLHAO, however, it is likely that the employer in some, if not all cases, will need to be involved in the process to ensure that the FWC is appropriately appraised of all the matters that go towards whether or not the RLHAO should be made.

• The ability for the FWC in making a APRPO to import rates from the host’s other agreements is concerning. The proposed provisions would allow the FWC to enforce the rates of pay payable to the host’s employees in completely separate geographically locations, where market rates are much higher and wage expectations are different.
• The anti-avoidance provisions are retrospective, backdated to 4 September 2023. Employers and hosts should be cautious to ensure that they are not entering into arrangements to avoid the application of an RLHAO.

 

Wage and Superannuation Theft

The Bill introduces a new criminal offence of intentional wage and superannuation theft (wage theft) which will take effect from 1 January 2025.

Not all instances of underpayment will be regarded wage theft.  Wage theft will occur where an employer intentionally engages in conduct that results in the failure to pay an employee their minimum statutory entitlements (that is, entitlements arising under the Fair Work Act 2009 (Cth) (FW Act), or a fair work instrument such as a modern award or enterprise agreement) – defined in the Bill as “required amounts”.

Standard of Proof

Given the seriousness of a finding that wage theft has occurred, for a prosecution of a wage theft offence to be successful, fault must be proved to the requisite criminal standard – being “beyond reasonable doubt”. To that end, intention must be proven in relation to the conduct elements – that is, that there is proof beyond reasonable doubt that the employer intended for their conduct to result in the non-payment of the required amount.

For example, if an employer mistakenly misclassifies an employee under a modern award, or makes an inadvertent payroll error, they will not be guilty of an offence, even though the misclassification has resulted in the employee receiving less than they ought to have. On the other hand, if an employer deliberately misclassified an employee in order to pay them a lower rate, it would be an offence under the Bill.

Penalties

Penalties include a term of up to 10 years imprisonment, or a fine up to the greater of 3 times the underpayment amount (being the difference between the required amount and the amount actually paid to the employee) and 5,000 penalty units (currently $1,565,000) for an individual or 25,000 penalty units (currently $7,825,000) for a body corporate.

Where a person is guilty of committing two or more offences and the aggregated offences arose out of a course of conduct by the person, the person is taken to have been found guilty of a single offence.

Related Offences

The Bill also includes penalties for “related offences” includes offences which are associated with a failure to pay a required amount, such as:

• being an accessory after the fact;
• attempting to commit the offence;
• being complicit;
• joint commission;
• procuring another person to commit the offence;
• inciting the commission of an offence; and
• conspiracy to commit an offence.

The Voluntary Small Business Wage Compliance Code

It is proposed that a Voluntary Small Business Wage Compliance Code may be developed.  If a small business employer complies with the Compliance Code in rectifying an underpayment that has occurred, the Fair Work Ombudsman (FWO) will be precluded from referring conduct resulting in the failure to pay a required amount to the DPP for prosecution as wage theft or entering into a cooperation agreement with the employer.

Cooperation Agreements

The FWO will be able to enter “cooperation agreements” with a person which relates to conduct engaged which may amount to an offence if that person has reported that conduct to the FWO. The effect of the cooperation agreement is that the FWO cannot refer the conduct to the Australian Federal Police or Director of Public Prosecutions whilst the agreement is in place.

Key Takeaways

• A new criminal offence applies to employers in relation to intentional underpayments. Employees, officers and agents of employer may be implicated by the “related offences’ provisions.
• Genuine mistake such as an inadvertent payroll error does not constitute an offence under the Bill.
• Significant penalties will apply but small businesses that rectify underpayments in accordance with the Voluntary Small Business Wage Compliance Code should avoid prosecution and penalties.

 

Work Health & Safety

There are a range of work health and safety (WHS) changes contained within the Bill. We’ve summarised the key changes below.

Industrial Manslaughter Offence

The Bill also includes significant WHS reforms. In particular, the amendments pose major changes to criminal liability under the Commonwealth Work Health and Safety Act 2011 (WHS Act) by introducing:

• a new offence of industrial manslaughter; and
• increasing increase all penalties in the WHS Act by nearly 40 per cent and provide for future indexing.

This means an increase in potential jail time for workplace deaths of up to a maximum of 25 years imprisonment for individuals, or a fine of up to $18 million for companies.

Notably, the federal WHS legislation will now mirror the Victorian state legislation, while a maximum penalty of 20 years imprisonment for individuals is currently imposed in Queensland, Western Australia and the ACT.

Proposed section 30A provides an offence of industrial manslaughter is committed where a person is conducting a business or undertaking (PCBU), or is an officer of a PCBU and:

• the person has a health and safety duty;
• the person intentionally engages in conduct;
• the conduct breaches the health and safety duty;
• the conduct causes the death of an individual (including where conduct substantially contributes to the death);
• the person was reckless, or negligent, as to whether the conduct would cause the death of an individual.

If the offence does not meet the threshold for industrial manslaughter, an alternative verdict can be decided following a hearing for industrial manslaughter and defendants are at risk of being found guilty of a Category 1 or 2 offence. The changes further clarify that Category 1 offences apply to officers of persons conducting a business undertaking. There is no limitation period for industrial manslaughter or Category 1 and 2 offences.

Corporate Criminal Liability

Another big change in respect of work health and safety are the changes which amend criminal liability provisions for bodies corporate, the Commonwealth and public authorities.

A corporation will be taken to have committed the physical elements of the offence if, it can be established that the board of directors, officers, employees or agents engaged in the in conduct through express or implied authorisation.

The mental state or fault component of an offense—excluding negligence—will be attributed to the corporation if:

• the board or an officer, employee or agent of the corporation had the relevant state of mind or expressly, tacitly or impliedly authorised or permitted the relevant conduct;
• a corporate culture exists that directed, encouraged, tolerated or led to the conduct constituting the offence.

Broadly, corporate culture may be a summation of one or more attitudes, policies, rules, courses of conduct or practices existing within the corporation generally or in the part of the corporation in which the relevant activity takes place; and

• with respect to conduct of officers, employees or agents, if the corporation is unable to establish it took all ‘reasonable precautions’ to prevent the conduct or the relevant authorisation or permission.

Organisations captured by the federal WHS Act will need to review their corporate WHS strategy and mechanisms of accountability to ensure adequate management of officers, employees and agents to ensure they are able to demonstrate the existence of a corporate culture that prioritises the health, safety and wellbeing of its workforce – actively led from the C-suite – and that all reasonable precautions are taken consistently.

Asbestos and Silica Safety and Eradication Agency

The key changes introduced by the Bill are to rename the Agency to refer to silica (as well as asbestos), to align to its broadened functions of coordinated action at a national level in relation to silica safety and silica-related diseases.

The rebadged Agency will act as a national coordination mechanism, intended to better align efforts across Australian states and territories in relation to preventing, controlling and managing occupational dust diseases (including silicosis) in Australia, as well as having responsibility for silica coordination, awareness raising, research, reporting and advising the Government in relation to silica.

The Agency will also take over responsibility for the Silica National Strategic Plan, (from the Department of Health and Aged Care).

 

Workers Compensation and Comcare

First Responders and PTSD Reforms

Amendments have been made to the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) which will mean that first responders who sustain post-traumatic stress disorder (PTSD) will not have to prove their employment significantly contributed to their PTSD for the purpose of their workers’ compensation claim.

The changes have introduced a reverse onus of proof for first responders with PTSD, to increase accessibility to recovery support and rehabilitation.

This will establish a rebuttable presumption that unless there is compelling contrarian evidence, the PTSD endured by ambulance officers, paramedics, emergency services communications operators, firefighters, the Australian Federal Police and members of the Australian Border Force, is presumed to have been significantly influenced by their occupational duties.

Comcare Guide for Arranging Rehabilitation Assessments and Requiring Examinations

The changes further insert a new section 57A to the SRC Act, which requires Comcare to develop a document called the “Guide for Arranging Rehabilitation Assessments and Requiring Examinations” (Guide).

The purpose of the Guide is to ensure accountable decision making in relation to arranging a rehabilitation assessment or requiring an employee to undergo an independent medical examination.

Section 57A requires a set of prescriptions for the development of the Guide, aimed at limiting the overuse of independent assessments which has been criticised for the downplaying of medical issues on the basis of a short assessment being completed by a practitioner that is unfamiliar with the patient taking precedence over medical advice from the patient’s long-standing practitioner.

 

Other Changes

Workplace Delegates’ Rights

There are also important changes to the rights of workplace delegates (a person appointed or elected in accordance with the rules of a union to be a delegate or representative for members who work in a particular enterprise). These changes operate at the Award, enterprise agreement and individual rights level for a workplace delegate.

At the Award level…

At the Award level, the FWC, in addition to the other work it is carrying out in reviewing Awards in response to a request from the Minister in September 2023, will be required by 30 June 2024 to have included within all Awards a “delegate’s rights” term.

These terms must ensure that a workplace delegate is entitled to:

• reasonable communication with members and persons eligible to be members in relation to their industrial interests;
• reasonable access to the workplace and workplace facilities for the purpose of representing member and potential members interests; and
• unless the business is a small business, reasonable access to paid training during normal working hours for the purpose of their role as a workplace delegate.

Whilst the availability of workplace delegates training for the purpose of dispute resolution training is a feature currently of some Awards, it is not generally a feature across the Award system. Nor are the new “delegate’s rights” concerning reasonable access to facilities and communication with members and potential members.

Such entitlements were more commonly reflected in the terms of enterprise agreements with highly unionised workforces. In the area of enterprise agreements there are also some important changes.

At the enterprise agreement level…

At the enterprise agreement level, all enterprise agreements commence their access period from 1 July 2024 (that is the employer has asked employees to vote on the enterprise agreement before that date), need to have a “delegate’s rights” clause that is at least as favourable as the clause within any Award that would otherwise apply to the employee.

If there is no term in the proposed enterprise agreement, or the term is not as favourable as any aspect of the Award clause, then the Award clause applies as a term of the enterprise agreement.

At an individual delegate’s rights level…

At an individual delegate’s rights level, there are new “workplace rights” under the banner of “industrial activities” defined for workplace delegates. An employer of a workplace delegate must not:

• unreasonably fail or refuse to deal with the workplace delegate;
• knowingly or recklessly make a false or misleading representation to the workplace delegate; or
• unreasonably hinder, obstruct or prevent the exercise of the rights of the workplace delegate (i.e. the right to reasonable communication, reasonable access to facilities and reasonable access to training for their role as a delegate).

It can be expected that these new “delegate’s rights” will form a basis for new general protections claims agitated by Unions not only as delegates seek to test the limits of these new privileges, but also one could expect that they find their way into the strategies that Unions might adopt for traditional industrial disputes and those that arise in bargaining.

Small Business redundancy exemption

The small business redundancy exemption is intended to remove the redundancy pay carve out for small businesses for circumstances where a larger business incrementally downsizes to become a ‘small business employer’ (with 15 or less employees) due to insolvency. Employees of small business employers are not generally entitled to redundancy pay.

When a business incrementally downsizes in the lead up to liquidation or bankruptcy, the residual employees who are helping with the winding-up of the business (e.g., payroll and bookkeeping staff) can lose their entitlement to redundancy pay due, notwithstanding that the employees who were made redundant before the employer was a ‘small business employer’ did receive redundancy pay.

Strengthening protections against discrimination for employees subjected to family and domestic violence

These changes extend existing anti-discrimination provisions within the FW Act to offer better protection for employees who have been, or continue to be, subjected to family and domestic violence (FDV), in the following ways:

• prohibit the creation and enforcement of ‘discriminatory’ terms within modern awards and enterprise agreements that discriminate against an employee on the basis of FDV or reasons relating to FDV;
• include subjection to FDV as a matter that the FWC must take into account when performing its functions or exercising powers; and
• expressly making subjection to FDV a ‘protected attribute’ (for the purposes of the FW Act’s general protections provisions), to offer more express protection for employees (and prospective employees) against adverse action (and unlawful termination) because they have, or are currently, being subjected to FDV.

These changes follow on from the changes introduced early this year (under both the SJBP Act and the subsequent Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Cth) reforms), which introduced:

• paid FDV leave for employees experiencing FDV (including casual employees);
• confidentiality requirements in relation to notice and evidence that may be requested in relation to taking such leave;
• specific requirements to ensure FDV leave is not recorded on payslips; and
• the ability for affected employees to request flexible working arrangements due to subjection to FDV.

Amendments regarding (bargaining) mediation and conciliation conference orders

Earlier this year, the SJBP Act introduced new provisions requiring bargaining parties to attend a FWC facilitated conference in attempt to resolve issues before industrial action occurs.

The provisions operate so that where the FWC makes a protected action ballot order in relation to a proposed enterprise agreement, it must also make an order directing the bargaining representatives to attend a mediation conference which must occur either before, or on the day on which voting on the protected action ballot, closes.

However, in a decision[1] earlier this year, the Full Bench identified a significant flaw – an employee bargaining representative’s non-compliance with an order to attend a FWC facilitated conference could render any subsequent employee claim action unprotected – not just for those represented by the non-complying bargaining representative, but for all others participating in the action.

These changes address this issue by clarifying exactly who is required to attend a conciliation conference in order for any subsequent employee claim action to be protected.

 

What’s coming in 2024?

Whilst the Government has succeeded in delivering itself an early Christmas present with the passing of this first section of the Bill, the first few months of next year will continue to present as a period for further change as the Senate Committee inquiring into the Bill provides its report (due on or before 1 February 2024), and those aspects of the Bill which were not passed in December come back up for debate and resolution.

Some of those key areas of potential change are:

• changes to the definition of casual employment as well as the casual conversion provisions to allow for employee initiated conversion;
• new provisions aimed at providing protections for regulated workers – including road transport industry and digital platform ‘gig economy workers’;
• independent contractors and the defence to “sham contracting”; and
• changes to the multi-employer bargaining framework,

amongst others.

For further commentary on the key areas of reform that will be revisited by Parliament in the new year, please check out the guidance previously published by Kingston Reid which can be accessed here.

Additional changes

Members of the Senate are also likely to push their own changed agenda in exchange for providing support to the Government to have the residual aspects of the Bill passed.

In this respect, there are two notable areas of change which have already been tabled by the Greens, in relation to the intractable bargaining provisions, and also the “right to disconnect”. These proposals have the potential to profoundly change employer rights and obligations.

In relation to the Greens’ intractable bargaining proposal, if the FWC is called on to arbitrate an intractable bargaining dispute, any determination made by the FWC cannot result in any term in the determination being less favourable for an employee or any union than the terms of an enterprise agreement that applies to the employees, prior to the determination.

Effectively, once the FWC is arbitrating an “intractable bargaining dispute”, employees and the union cannot lose – they get to keep everything they currently have, and any changes can only be to improve existing conditions.

Finally, Minister Burke has signalled a willingness to discuss the Greens’ “right to disconnect” proposal in the new year, which revives the Fair Work Amendment (Right to Disconnect) Bill 2023 tabled by the Greens in March 2023 and contains a prohibition on employers contacting employees outside of their hours of work (including during leave), except in certain limited circumstances.

Stay tuned for further updates by the Kingston Reid team, and don’t hesitate to contact us if you require advice about the implications of these changes for your organisation.

[1] CEPU v Nilsen (NSW) Pty Ltd [2023] FWCFB 134

 

Michael Mead Partner +61 2 9169 8428 [email protected]	Duncan Fletcher Partner +61 8 6381 7050 [email protected]	Liam Fraser Partner +61 7 3071 3113 [email protected]
Katie Sweatman Partner +61 3 9958 9605 [email protected]	Emily Baxter Special Counsel +61 2 9169 8411 [email protected]	James Parkinson Special Counsel +61 8 6381 7053 [email protected]
Xavier Burton Lawyer +61 8 6381 7068 [email protected]	Beth Silverman Associate +61 3 9958 9603 [email protected]	Emma McCarthy Lawyer +61 2 9169 8422 [email protected]
Jane Silcock Executive Counsel – Knowledge +61 2 9169 8419 [email protected]	Frank Daly Paralegal +61 8 6381 7051 [email protected]	Krystina Sader Paralegal +61 8 6381 7072 [email protected]

December 1, 2023

The NSW Government has introduced significant amendments to state industrial relations legislation. Those amendments follow significant promises the Government made to the Union movement prior to its election, and the recommendations made to the Government by the Industrial Relations Taskforce it established shortly after its election. This week, the Industrial Relations Amendment Bill 2023 (NSW) (Bill) passed through both houses of parliament, and it is expected to soon receive royal assent and come into effect. Our summary of the key changes is below.

Wages Cap Repealed

The Bill repeals the provision of the Industrial Relations Act 1996 (NSW) which requires the Commission to give effect to the Government’s declared wages policy. This wages cap has been seen as a restriction on the Commission’s ability to exercise its discretion taking into account all factors relevant to a dispute in circumstances the resolution of a dispute would lead to increased employee-related costs which were not offset by employee-related costs savings. The repeal of this provision was foreshadowed before the election and was a core commitment that was made by the new Government. The removal of this limitation on the Commission’s powers is likely to lead to additional claims by unions in respect of public sector conditions of employment.

The apparent trade-off for this amendment is the inclusion of the fiscal position and outlook of the Government as a mandatory consideration for the Commission in respect of the Commission’s function in determining public sector conditions of employment. It is not yet know what comparative weight will be given to this factor by the Commission, amongst the various factors in any given dispute.

Mutual Gains Bargaining

The Bill introduces the new concept of ‘mutual gains bargaining’ in respect of public sector and local government employers. Where a union and employer agree to engage in mutual gains bargaining, the Industrial Relations Commission will be required to act as a facilitator of these bargaining processes unless the parties appoint an alternative third party facilitator. The bargaining is underpinned by principles of collaboration and identification of areas of mutual need and desire and aims to build consensus. The process is underpinned by good faith bargaining obligations. This is similar to the federal system.

The facilitator or any party to the bargaining may declare the bargaining unresolved and give a report to the Commission regarding the conduct of the parties during bargaining and the outstanding issues. This will be treated by the Commission as a notice of dispute and will proceed through the Commission’s ordinary processes. Any arbitration following this process will take into account the parties’ conduct during mutual gains bargaining.

Reintroduction of the Industrial Court

In a change which has the potential to affect both public sector and private sector employers across the state, the Bill re-establishes the Industrial Relations Commission in Court Session, also known as the Industrial Court. The Industrial Court will resume its pre-2016 jurisdiction, and will have broad power to:

1. deal with offences and civil contraventions under work health and safety, worker’s compensation, workplace surveillance and explosives legislation;
2. make declarations and award remedies in respect of unfair contracts of employment;
3. make declaration of law in respect of any matters over which the Industrial Relations Commission has jurisdiction;
4. deal with appeals in accordance with certain superannuation legislation; and
5. make orders in respect of underpayment claims in excess of the small claims limit.

These changes consolidate in the Industrial Court work-related enforcement mechanisms which were previously allocated variously to the District Court and Supreme Court. The Industrial Court will be a superior court of record with equivalent status to the Supreme Court.

Reintroduction of Regional Allocations for the Industrial Relations Commission

The Bill reintroduces the practice of allocating members of the Industrial Relations Commission to particular regional areas of responsibility. This allows a greater level of local knowledge in respect of peculiarly regional matters to be relied upon.

 

Christa Lenard Partner +61 2 9169 8404 [email protected]

Luke Maroney Senior Associate +61 2 9169 8433 [email protected]

November 27, 2023

Restrictions on the use of fixed and maximum term contracts were one of the significant and well-publicised reforms introduced by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amendment Act) in late 2022 which are set to commence in just a week’s time, from next Wednesday 6 December 2023.

Throughout 2023, employers across Australia have been taking steps to review their hiring practices and existing workforce composition to ensure compliance with the new provisions on and from 6 December. These reforms have a particular impact on employers with uncertain funding arrangements, particularly in the tertiary education and not-for-profit sectors.

Last Friday afternoon, Minister Burke introduced the Fair Work Amendment (Fixed Term Contracts) Regulations 2023 (Regulations), which create further exceptions for the purposes of the limitation on fixed term contracts provisions which apply in respect of organised sports, live performance industry employees, philanthropic entities and – as anticipated – higher education employees.

In effect, the Regulation essentially operates as a ‘stay’ of the commencement of the application of the new restrictions for fixed term contracts in the abovementioned areas for a limited period of 6 months – that is, until 1 July 2024. However, only contracts entered into on or after next Wednesday 6 December 2023 (and before 1 July 2024) will be exempted from the restrictions.

The challenge that the Regulations respond to is that employers in these sectors are typically (significantly) dependent on government or other funding to operate their core functions. In relation to tertiary education, the current manner in which funding is allocated creates significant difficulties in applying the new provisions of the FW Act relating to fixed term contracts. For example, where funding is allocated to particular projects under largely recurrent government schemes, but in variable amounts, or where the funding is allocated on an annualised basis, the exceptions to the restrictions introduced by the Amendment Act are unlikely to apply. This creates a difficulty which would appear to require employers to engage employees on ongoing contracts, despite not having certainty from Government that the positions will, in fact, be funded on an ongoing basis.

While the tertiary education sector provides a particularly sharp example of this issue, it is not alone. In the not-for-profit sector, projects are often funded by recurrent short-term government grants, with employment contracts fixed to a duration reflecting the funding. These recurring grants cause the same issue as those faced in the community sector.

The purpose of the Regulations is to allow for additional time for relevant employers to continue discussions with DEWR in relation to the application of the fixed term contract limitations, and it remains to be seen what will emerge from those discussions in the lead up to 1 July 2024 – importantly, whether any new (permanent) exceptions will be introduced.

For comprehensive discussion of the reforms introduced under the Amendment Act, including but not limited to the new limitations on fixed and maximum term contracts, please see our Insight here.

As we communicated last week (in a separate Insight article looking at recent developments arising in respect of the Government’s Closing Loopholes Bill), Minister Burke has now agreed to certain amendments in respect of the Bill’s gig-economy provisions as well as the “same job, same pay” provisions. A revised Bill reflecting certain amendments to these provisions (arising whilst the Senate inquiry into the Bill continues) is expected to be tabled in the House of Representatives this week.

To understand whether your organisation may be able to take advantage of the reprieve in the regulation of its fixed and maximum term contracts, please contact a member of the Kingston Reid team.

 

Luke Maroney Senior Associate +61 2 9169 8433 [email protected]

Katie Sweatman Partner +61 3 9958 9605 [email protected]

 

Jane Silcock Executive Counsel – Knowledge +61 2 9169 8419 [email protected]

November 22, 2023

Outside the developments we have seen in relation to the Government’s proposed “Closing Loopholes” laws, and the looming dates for aspects of the “Secure Jobs, Better Pay” reforms to take effect – including the sunsetting of “Zombie Agreements” and limitations on the use of fixed term contracts – the past month or so has seen a number of important court and Commission decisions come down.

Federal Court finds enterprise agreement capable of retrospective operation

In Murtagh v Corporation of the Roman Catholic Diocese of Toowoomba [2023] FCAFC 172, the Full Federal Court determined that enterprise agreements are capable of operating retrospectively to confer entitlements upon former employees whose employment had ended before the relevant agreement was ever made.

In that case, the employer was found to have contravened its agreement by not paying a back payment to former employees in these circumstances – even to an employee that had left around 12 months earlier.

This is at odds with the long-accepted orthodoxy that enterprise agreements cannot operate in this way, given that the Fair Work Act provides that “an enterprise agreement does not give a person an entitlement unless the agreement applies to the person.

As the Court observed, this is an issue of “considerable systemic importance and related difficulty”, given that enterprise agreements commonly include terms for back-payment of retrospective pay increases (which these generally understood to provide an entitlement only to current employees).

In our view there is room for significant doubt about the correctness of this judgment, and it remains to be seen whether or not it will be challenged.

“Holding discussions”: scope of right of entry provisions clarified by Full Federal Court

The Full Federal Court in Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Austal Ships Pty Ltd [2023] FCAFC 180 has overturned a first instance judgment of the Federal Court from late 2022, concerning the right of entry provisions of the Fair Work Act.

At first instance, Colvin J held that although the Act allows right of entry permit holders to enter premises for the purpose of “holding discussions” with relevant employees, an entry is unauthorised if part of the purpose is to seek some form of agreement, commitment or pledge.

On this basis, it would not be lawful for a permit holder to exercise right of entry to seek signatures on a petition, or to recruit members, as these things would be outside the boundaries of a “discussion”.

The Full Court accepted that this was an unduly narrow construction of the relevant provisions, and that discussions will often be had for the very purpose of achieving a particular outcome. The Court held that it was artificial to distinguish holding a discussion from the realisation of the purpose or objective of those discussions.

In light of the Full Court’s judgment, this will no longer be a lawful basis for an employer or occupier of premises to refuse entry.

Multi-employer bargaining authorisations

We have started to see some early Commission cases involving the more controversial aspects of last year’s “Secure Jobs, Better Pay” provisions being handed down.

This has included multi-employer bargaining authorisations being made in the early learning and education sectors. These applications were largely determined by consent, and so the more complex aspects of the reforms have not yet been the subject of fully reasoned consideration.

That said, they nevertheless provide some important insights into the operation of the new provisions.

First, the Commission has acknowledged the complexity and uncertainty of the new multi-employer bargaining schemes which will inevitably be the subject of future debate.

Second, and more importantly, the Commission has indicated that concept of “clearly identifiable common interests – central the multi-employer bargaining framework – is one of “wide import” and tends to “any joint, shared, related or like characteristics, qualities, undertakings or concerns”. This gives credence to employer concerns about the breadth of the provisions.

Fair Work Commission makes first intractable bargaining declaration

We have also now seen the first intractable bargaining declaration (relating to bargaining with Fire Rescue Victoria).

There was no contest in this case that bargaining had become “intractable”, and so again the boundaries of that threshold concept are yet to be fully explored. The Commission has however indicated (without necessarily deciding) that the requirement for the Commission to have previously assisted with “the dispute” means the dispute which led to bargaining becoming intractable, as opposed to just bargaining more generally.

The matter is now listed for hearing in December for the purposes of arbitrating the terms of the Workplace Determination. It appears likely that this will involve some contest about the extent to which parties are able to revisit their position on matters which were the subject of bargaining – an important issue on the overall intractable bargaining framework.

 

Brad Popple Special Counsel +61 3 9958 9613 [email protected]

Effective 12 December 2023, the Australian Human Rights Commission (AHRC) will be equipped with enhanced powers to investigate and enforce an employer’s positive duty under the Sex Discrimination Act 1985 (Cth) (SDA).

The AHRC’s expanded authority includes the ability to conduct inquiries, issue compliance notices, seek Court-ordered compliance, and enter into enforceable undertakings.

Key takeaways

• The positive duty represents a significant shift in how employers must approach unlawful conduct of a sexual nature and sex-based hostility in the workplace. Such a substantial shift demands a corresponding and thorough reassessment of existing preventive measures.
• Considering the common ground now shared by the AHRC and Safety Regulators, organisations should anticipate addressing comparable issues with multiple regulatory bodies.
• The proactive approach encouraged by the AHRC emphasises not just compliance but a genuine commitment to fostering respectful, inclusive workplaces. Tokenistic or artificial measures, such as basic online training for staff in the absence of other measures, will not meet the AHRC’s expectations.

Understanding the Positive Duty

Introduced in 2022 through amendments to the SDA, the positive duty requires employers to take reasonable and proportionate measures to eliminate unlawful behaviours. The positive duty goes beyond sexual harassment to include sex discrimination, sex-based harassment, the creation of a hostile workplace environment based on sex, and related acts of victimisation. The duty also extends beyond the actions of employees and contractors to encompass conduct by third parties, such as customers or clients. While it complements existing obligations under work, health, and safety laws, it does not replace and requires a holistic and comprehensive approach for compliance.

AHRC’s New Investigative Powers

The AHRC’s authority to commence an inquiry arises when there is a reasonable suspicion that an organisation is not complying with the positive duty. This suspicion can be triggered by various sources, including other government agencies, impacted individuals, unions or worker representatives, or media reports. In cases of non-compliance, the AHRC can provide recommendations, issue compliance notices specifying corrective actions, apply for court orders directing compliance, and enter into enforceable undertakings with organisations.

Compliance Guidelines and Principles

To assist employers in meeting their obligations, the AHRC has provided guidance material outlining seven standards and four guiding principles. These standards cover a range of measures employers should adopt to eliminate unlawful conduct. While each employer is expected to address all seven standards, what is deemed “reasonable and proportionate” will vary based on factors such as organisation size, resources, and the practicality and cost of implementing measures.

Industry-Specific Scrutiny

Notably, the AHRC has indicated particular scrutiny on industries such as mining, retail, and legal services. This emphasis underscores the AHRC’s commitment to ensuring that businesses across various sectors actively work towards creating environments free from unlawful behaviours. Employers within these industries are urged to pay special attention to the AHRC guidelines to align their practices with the evolving legal landscape.

 

Kathleen Weston Associate +61 2 9169 8416 [email protected]

Christa Lenard Partner +61 2 9169 8404 [email protected]

Significant changes have occurred in work health and safety law over the last year. Amendments have been made and proposed to state and Commonwealth safety legislation meaning that jurisdictions are straying from what was originally a harmonised regulatory regime. As states and territories become less harmonised, compliance is becoming more complex for organisations with cross-jurisdictional operations. Victoria is now the only ‘non-harmonised’ jurisdiction in the country.

There have been some big changes, particularly in relation to psychosocial health and safety, penalties for breaches of health and safety legislation, prohibitions on contracts for indemnification from penalties, and increased regulatory activity.

Industrial manslaughter is now an offence in 5 state and territory jurisdictions. Two additional jurisdictions are considering or likely to introduce the offence shortly.

The team at Kingston Reid has prepared the following snapshot of recent changes and significant events across the country.

Model laws

The Model WHS Act forms the basis of the WHS Acts implemented across Australia except for Victoria.

The Model WHS Act was amended to significantly increase maximum penalties, to clarify the way in which Category 1 offences operate and to specifically set out that psychosocial risks must be eliminated or mitigated through the risk management clauses contained in the Model WHS Regulations.

Commonwealth

In mid-September, a wide range of amendments to the Commonwealth WHS Act, which applies mainly to the Federal Government and public authorities, were introduced, including prohibitions on insurance to cover WHS penalties and the addition of negligence as a fault element to the category 1 offence (which was historically concerned with recklessness).

The Federal Government’s “Closing Loopholes” Bill includes amendments to the Commonwealth WHS Act. The proposed amendments include the offence of industrial manslaughter, significant penalty increases for breaches and provisions relating to asbestos safety.

Queensland

The report on the review of Queensland’s WHS Act was published along with the Government’s response to the recommendations in the report in May 2023. Several changes to the Queensland WHS Act have been proposed. Significant changes include increased integration of health and safety representatives’ involvement in the performance of inspector and WHS permit holder functions, and increased recognition and participation of unions in safety matters.

A health and safety manager at the Queensland Museum was charged and pleaded guilty to a category 2 offence (an offence relating to a failure to comply with a duty resulting in exposure of a person to the risk of death or serious injury), following her failure to complete a risk assessment and implement controls relating to zoonotic diseases present at the Museum’s taxidermy department.

New South Wales

In October this year, the NSW Government formally committed to enacting a provision for the offence of industrial manslaughter.

This announcement followed NSW Work Health and Safety Minister Sophie Cotsis’ announcement of a 12-month “anytime, anywhere” inspector blitz campaign to combat the number of workplace fall incidents.

A bill was introduced which will triple the maximum penalty for category 1 breaches and increase all other WHS fines by 40%. The Bill also gives police powers under the WHS Act.

A PCBU charged with a category 1 offence was fined a record $2.025 million and a leading employee was also fined $101,250 in relation to the death of a worker in a woodchipper accident.

ACT

The ACT WHS Act was amended to include sexual assault incidents as notifiable incidents. Penalties will apply if PCBUs fails to notify WorkSafe ACT about an incident.

Codes of Practice dealing with psychosocial hazards and asbestos training were also made.

Victoria

WorkSafe Victoria has successfully prosecuted several breaches of the Occupational Health and Safety Act 2004 in respect of psychological risks. This was without any legislative change relating to the management of psychosocial risks.

Court Services Victoria was charged for failing to eliminate or mitigate health and safety risks for workers who were the subject of a toxic workplace culture, bullying and excessive workloads.

Tasmania

Following an inquest into the suicide death of four Tasmanian policemen, a coroner recommended that workers who are exposed to certain distressing incidents should automatically be referred to support providers for psychological assessment. The coroner also recommended mandatory six-monthly wellbeing screening for all serving officers.

South Australia

South Australia adopted the industrial manslaughter offence. Regulations regarding psychosocial risks were also introduced.

Western Australia

The WA Government launched its “Speak Up, Report It” campaign to address bullying, harassment and inequality in the key sectors of the Western Australian economy.

The Government also introduced a bill to adopt an ‘applied law approach’ to its mirror Rail Safety National Law legislation. If passed, the laws will automatically update in line with changes made to the Rail Safety National Law by the South Australian Parliament – the ‘author’ of the laws which other states and territories have agreed to adopt.

Northern Territory

The Northern Territory Supreme Court upheld the record breaking WHS fines of $960,000 imposed on a PCBU and $180,000 imposed on its director in relation to the death of a worker inside the strike zone of mobile plant.

The NT Government also made a new Code of Practice relating to tower cranes.

 

Sarah-Jayne Rayner Senior Associate +61 7 3071 3122 [email protected]

Xavier Burton Lawyer +61 7 3071 3121 [email protected]

The fact is, many of us spend a rather large portion of our waking hours each week at work, meaning that our colleagues are often who we spend the most time with. Research shows that not only is work important in building social relationships, but those social relationships make us better at our work – it’s something to be encouraged. So, it’s unsurprising then that those social relationships have a tendency to carry on outside of the workplace (and working hours) – whether that’s at the pub on a Friday evening, ‘kicking on’ after a work function, or to keep the conversation going through social media chat groups.

Of course, the question for employers becomes what can be done when employees behave badly outside of what is traditionally considered to be the workplace. It’s a timely question that is worth revisiting following two recent decisions, as we move towards the festive season.

Whilst out of hours conduct may be a reason to terminate an employee’s employment (or take other disciplinary action), the employer will need to show that the conduct occurred “in connection with work” – a phrase which will be considered in a manner that is beneficial to the particular employee in question and involve a consideration of all of the circumstances including:

• the nature of the out of hours conduct (what happened and where did it occur)
• the circumstances in which the out of hours conduct occurred
• the purpose and nature of the employment (including the nature of the business, and role and duties of the employee concerned)
• the express and implied terms of the contract of employment
• the effect of the conduct on the employer’s business (or its effect on other employees of the employer)

Recent case law

Each of the following decisions, one of the High Court, and one of the Full Bench of the Fair Work Commission (FWC), both handed down in the last 3 months, consider the question of connection with work in some detail.

The proceedings in the High Court were to determine whether the employer was vicariously liable for the negligent act of one employee against a colleague. Central to the proceedings was the question as to whether the employee was acting in connection with his employment.

Both employees worked at a restaurant at the resort and their roles required them to live on site, where they shared a room in accommodation provided by the employer.

After work one evening, the employees went for a drink, returning to their room at about 1:00am. The employee left shortly afterwards for some more drinks, while the colleague went to bed. During the night, the colleague was woken up by the employee urinating on him in his bed. The colleague inhaled and choked on the urine, and suffered a cataplectic attack, caused by the emotional stress of the situation.

The High Court confirmed that an employer will be liable for the acts of employees committed in the course or scope of the employment, but needed to consider whether the employee was acting as a “stranger to his employer” and whether he was on a “frolic of his own”.

In deciding that the employee was not acting in connection with his employment, the High Court considered the points set out above, and importantly, that the behaviour engaged in by the employe was so far removed from the duties and his employer’s expectations of him that the employer could not be held liable.

In the second matter, the Full Bench of the FWC was required to consider an appeal of an unfair dismissal decision in which the employee had been reinstated to his employment notwithstanding that he had been an active participant in a Facebook group of current and former employees where offensive and pornographic material was shared.

While agreeing that an employee’s employment may be terminated for ‘out of hours’ conduct, the FWC considered that neither the composition of the Facebook group, (being employees or ex-employees), nor the offensive nature of the posts (although contrary to the employer’s policies and procedures), were enough to establish the requisite connection with the workplace. At the same time, the FWC was clear to admonish the employee’s behaviour, making clear that the type of material shared in the Facebook group “has no place at or in any workplace, regardless of the nature of the work or the constitution of the workforce”.

The FWC held that the employee’s conduct occurred outside of working hours and in a group set up for consenting friends and there was no evidence that his conduct had an impact at the workplace.

So, what does this mean for employers?

At first glance, the FWC decision to reinstate the employee, despite the “abject stupidity” of his behaviour, appears somewhat at odds with the employer’s positive duty to take reasonable and proportionate measures to eliminate sex discrimination and sexual harassment in the workplace.

Employers may have little control over employees’ conduct outside of the workplace or after working hours, including at end of year ‘after parties’, but they do have a responsibility for how that conduct impacts their work or the work of others.

If ‘out of hours’ conduct is spilling over into work time or otherwise causing disruptions to work that make it difficult for employees to do their jobs or work cooperatively, then employers will need to implement strategies to effectively manage those impacts and those relationships in light of these decisions and the employer’s legal obligations to ensure a safe workplace.

 

Emily Baxter Special Counsel +61 2 9169 8411 [email protected]

Current status

Since the “Closing Loopholes” Bill was tabled in Parliament on 4 September 2023 (purporting to close what the Government has described as “regulatory loopholes”), it has continued to capture broad public interest. Many of the changes proposed by the omnibus Bill are generating heated debate, such as:

• the Government’s foreshadowed “same job, same pay” amendments (allowing the Fair Work Commission to make orders requiring that “host” companies ensure that labour hire workers are afforded the same pay and conditions as employees engaged directly under an enterprise agreement that applies to the host), the criminalisation of “wage theft” and changes aimed at regulating “employee-like” workers (namely gig economy platform workers and road transport industry workers); and
• more surprising changes including new workplace rights for union delegates and changes to how employee status is determined (which would reverse the effect of the landmark 2022 High Court rulings in CFMMEU v Personnel Contracting[1] and Jamsek[2]).

(Kingston Reid has previously published a guide on the Government’s Bill, which can be accessed here.)

Facing resistance from the Senate crossbench, the Bill was swiftly sent off for inquiry by the Senate Education and Employment Legislation Committee which has, over the course of October, convened 6 public hearings and received over 170 separate submissions on various aspects of the Bill.

New single-issue bills

Amidst this process, some of the proposed changes have quietly found support with Senate cross-benchers David Pocock and Jacqui Lambie who, just two weeks ago, introduced four ‘single issue’ bills in the Senate in an attempt to expedite certain less-contentious aspects of the Closing Loopholes reform package.

These single-issue bills seek to:

1. broaden the functions of ASEA (the Asbestos Safety and Eradication Agency) to address and coordinate national action in relation to the increase in silicosis and other silica-related diseases in Australia;
2. improve protection against discrimination for employees who have been, or continue to be, subjected to family and domestic violence;
3. address an ‘anomaly’ in how the small business redundancy pay exemption operates where a business downsizes and becomes a small business employer due to insolvency or bankruptcy (which has a consequential impact on the redundancy entitlements of remaining staff); and
4. introduce a rebuttable presumption that post-traumatic stress disorder suffered by emergency (‘first responder’) employees covered by the Safety, Rehabilitation and Compensation Act 1988 (Cth) (such as employees of the Australian Federal Police, firefighters, ambulance officers and paramedics) was contributed to, to a significant degree, by an employee’s employment.

All of these single-issue bills were unanimously passed in the Senate on 9 November 2023, however, their course is being blocked by the Government in the House of Representatives. It appears unlikely that we will see substantial movement until early 2024.

Casual employees & other proposed alterations

In respect of the casual employee provisions of the Closing Loopholes Bill, some excitement has recently been generated by the prospect of a legislative “note” being included in the Bill to indicate that employees can be casual even when they work according to a regular and predictable pattern.

However, this is likely to be seen as cold comfort by employers, as the note is unlikely to offer comprehensive and unequivocal protection to employers and it remains to be seen what form the final legislation will take. This is bound to be a pressure point in further Parliamentary (and public) debate over the proposed new laws over the next few months leading into 2024.

At the same time, it looks increasingly likely that we will see further amendments to certain parts of the Closing Loopholes Bill potentially before the Senate Committee reports back. For instance, in relation to the Bill’s gig economy-related provisions, Minister Tony Burke has agreed for the new laws to clarify that gig workers are engaged as contractors (and not employees). Separately, Minister Burke has agreed to the exclusion of “service contractors” (who supply equipment and/or their own management services, as distinct from the sole provision of labour) from the operation of the Bill’s “same job, same pay” provisions. A revised Bill reflecting this (amongst other) changes is expected to be tabled in the House of Representatives next week (commencing 27 November 2023).

The Senate Education and Employment Legislation Committee’s inquiry report is due on or after 1 February 2024.

[1] [2022] HCA 1.
[2] [2022] HCA 2.

 

Jane Silcock Executive Counsel – Knowledge +61 2 9169 8419 [email protected]

Tae Kim Lawyer +61 8 6381 7068 [email protected]