On 6 November 2023 two Senate crossbenchers, David Pocock and Jacquie Lambie, introduced four new Bills into Federal parliament in an attempt to implement what they consider to be the less contentious parts of the Federal Government’s Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) (Closing Loopholes Bill).
The Closing Loopholes Bill was introduced into parliament by the Federal Government on 4 September 2023. Despite the desire of the Federal Government for it to be debated and ultimately passed this year, the opposition and crossbenches were able to successfully put off that process until at least February 2024 by implementing a Senate inquiry and period of public consultation. For a summary of the changes proposed by the Closing Loopholes Bill, please see our previous article.
Some parts of the Closing Loopholes Bill – the regulation of labour hire employees and gig economy workers, and provisions relating to casual employees – have received significant criticism and lobbying for change from employer groups and not surprisingly strong support from the union movement. Other parts of the Closing Loopholes Bill have received little to no comment and appear to have broad support.
The four Bills now introduced seek to implement less controversial reforms in the following areas (in the same terms as previously proposed under the Closing Loopholes Bill):
Stronger discrimination protections
Currently, being a person subjected to family and domestic violence is not a protected attribute in the Act or under other Federal anti-discrimination laws, but is protected by some State and Territory anti-discrimination laws.
The government has proposed amending the Act to include a new protection for employees and prospective employees by recognising being subject to family and domestic violence as a protected attribute within the Act’s anti-discrimination provisions.
This change would have the effect that an employer would be prohibited from terminating an employee’s employment because they were being subjected to family and domestic violence.
Regulatory changes
Small business redundancy exemption
The Act currently contains an exemption to the obligation to otherwise make redundancy payments where the employer comes within the “small business redundancy exemption”.
Changes are proposed to cover the situation when a larger employer incrementally downsizes their workforce due to insolvency, either in the period leading up to liquidation or bankruptcy, or afterwards, and the number of employees falls below the 15 employee threshold for the small business definition.
Under the current position, those remaining employees could lose their previous redundancy payment entitlement under the Act. This could occur, for example, where most of the employees are made redundant, but some staff such as bookkeeping and payroll staff – fewer than 15 employees in total – are retained to assist with the orderly wind up of the business. At present, the majority of employees would receive their redundancy entitlements, but the employees kept on to finalise a winding up may not due to the small business redundancy exemption. Under the proposed changes, the small business redundancy exemption would no longer apply in those circumstances.
Asbestos Safety and Eradication Agency
The increase in silicosis and other silica-related diseases has raised the need for urgent coordinated national action to reduce rates of silica-related diseases and to support affected workers and their families.
The government has proposed expanding the functions of the re-named Asbestos and Silica Safety and Eradication Agency to include coordinating action on silica safety and silica-related diseases. This includes developing, promoting and reporting on a Silica National Strategic Plan which will coordinate and track the progress of jurisdictions against nationally agreed targets.
Amendments to the Safety, Rehabilitation and Compensation Act 1988 (Cth)
The government has proposed amending the Safety, Rehabilitation and Compensation Act 1988 (Cth) to introduce a rebuttable presumption that post-traumatic stress disorder suffered by specified first responders was contributed to, to a significant degree, by their employment. Those specified first responders would include Federally employed firefighters, ambulance officers or paramedics, and emergency services communications operators.
What is next?
While the Federal Government does not support delaying any of the measures proposed in the Closing Loopholes Bill, it will be interesting to see what position it takes if these four new Bills have the support of the opposition and crossbenches.
The splitting of the Closing Loopholes Bill measures in this way does not mean that we will not see significant changes in the areas considered more controversial, but the Federal Government may need to accept that parliament requires more time to examine and consult, and then ultimately pass, those other measures in some form.