On 7 December 2023 the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 was split into two pieces of legislation; the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (“Closing Loopholes Bill No.1”) and Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 (“Closing Loopholes Bill No.2”).

The Closing Loopholes Bill No.1 was passed by the Senate, with the Closing Loopholes Bill No.2 to be considered by the Parliament early next year.

The below table details how each aspect of the legislation has been affected.

The changes in the left column will pass the Parliament and become law, subject to the various commencement periods (see below). The changes in the right column remain before the Parliament and will undergo the full Senate inquiry process that is due to conclude by 1 February 2023.

Below is a summary of the changes that were passed on 7 December 2023.

Labour Hire
The FWC will have the power to make new labour hire orders that impose obligations on host businesses who engage labour hire firms and require labour hire providers to pay employees at the same full rate of pay to which they would be entitled were they directly employed by the host business.

This means that any member who has an enterprise agreement in place that utilises labour hire must pay the labour hire employees the same rate employees directly employed by the member would receive under the Agreement.

Labour Hire orders (general) will commence the day after Royal Assent.

Labour hire orders (protected rate of pay, host obligations) will commence 1 November 2024.

Delegates’ Rights
The Government will provide union workplace delegates with a series of new rights, including access to paid time off for training purposes. Employers will be obliged to engage with delegates, not hinder or obstruct them in their duties, or make any false statement to a delegate. The Fair Work Commission will be empowered to create a model term for insertion of workplace delegates rights terms into all enterprise agreements.

This change will commence the day after Royal Assent.

Wage Theft
A new wage theft offence will criminalise intentional or intentionally delayed payments and underpayments of amounts to employees, including superannuation, wages, and allowances.

This will only apply where intentional conduct is established.

This change will commence the later of 1 January 2025 and the day the Minister prescribes the Voluntary Small Business Wage Compliance Code.

Other changes passed
The proposed measures relating to work health and safety and discrimination include:

• Work Health and Safety Act 2011 (Cth)
  A new offence of industrial manslaughter to be introduced into the model legislation. These changes do not automatically apply to PCBUs covered by State and Territory WHS law; it remains a matter for each State or Territory to legislate changes to their WHS law (noting that several States have existing industrial manslaughter offences).

      This will commence on 1 July 2024.

• Asbestos Safety and eradication agency
  Expanded functions of this agency to include coordinated action on silica safety and silica related diseases. This change will commence the 28^th day after Royal Assent.
   
• Stronger discrimination protections
  The Fair Work Act 2009 will be amended to include ‘subjection to family and domestic violence’ in the list of protected attributes. This means it will be unlawful for an employer to take adverse action against an employee or potential employee who have been, or are being, subject to family and domestic violence.

      The change will commence the day after Royal Assent.