Update on the Closing Loopholes Bill - Kingston Reid

Update on the Closing Loopholes Bill

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]