A raft of amendments closing loopholes in the Fair Work Act 2009 commenced on 15 December 2023.
Changes introduced by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 include:
Entitlement to a redundancy payment is extended to employees of a small business, being one with fewer than 15 employees, in certain circumstances. Generally, such businesses are exempt from the requirement to pay redundancy. However, under the amended provisions employees may be entitled if the employer is bankrupt or in liquidation and the only reason the exemption applies is that the trustee in bankruptcy or liquidator has reduced the number of employees to less than 15.
New provisions in Part 2-7A of the Fair Work Act restrict labour hire arrangements and allow employees or unions to apply to the Fair Work Commission for regulated labour hire arrangement orders prescribing the rates of pay that employees under a labour hire arrangement must receive. However, any such orders made by the Commission have no effect until at least 1 November 2024. The new provisions also introduce strict anti-avoidance provisions and civil penalties. There are some exceptions to the Commission’s ability to make orders, including for small business employers.
Prohibited grounds for dismissal are extended to include the fact that an employee is subject to domestic or family violence.
Right of entry
The amending Act removes the requirement for state or territory work health and safety representatives to hold an entry permit before entering a workplace. However that innovation is a subject to review after 9 months.
The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 includes additional provisions criminalising the intentional underpayment of wages by employers. Those provisions do not commence until 1 January 2025.
The By Lawyers Employment Law commentary has been updated accordingly. The amending Act’s further provisions will be the subject of additional publication updates in due course, as required.