Greatest Good Regulatory Update August 2023 

Federal Government’s third industrial relations reform package

The Federal Government introduced the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 into Parliament – their third tranche of industrial relations changes. The Government says the Bill aims to close for key loopholes they claim are being used by some employers, as well as to strengthen work health and safety frameworks. The proposed changes are significant and far-reaching and extend well beyond addressing the four key loopholes:

• Labour hire – same job same pay
  • this change looks to address where employers have negotiated rates for their employees under enterprise agreements, whilst using labour hire to perform work at lower rates
  • the government estimates this change will impact around 67,000 people
  • small businesses with less than fifteen employees will be exempt from this change
  • if passed, the changes will start the day after royal Assent is received

• Wage theft
  • a neutral wage theft offence will be introduced. Employees who intentionally underpay staff face a penalty of up to 10 years in prison and a maximum fine of $7.825 million, or three times the underpaid amount
  • it is not intended to capture employers who inadvertently underpay staff. Intentional conduct is defined as where a person means to engage in conduct
  • a Voluntary Small Business Wage Compliance Code will be developed to provide protection from criminal prosecution for small businesses
  • further consideration is required to determine how a Federal wage regime interacts with the current state based regime currently in Victoria and Queensland, where fines and imprisonment can apply

• Casual employees
  • the current rules relating to employer offers and employee requests to convert casual employment to full-time or part-time employment remain. In addition to this, after six months’ employment (or twelve months for a small business), a casual employee will be able to issue their employer with a change notification if they no longer consider they meet the definition of a genuine casual. In these circumstances:
    • the employer must respond in writing within twenty-one days advising they accept or reject the notification, and must consult the employee before responding
    • if the notification is accepted, the casual employee changes to full-time or part-time employment
    • an employer can reject a notification of limited grounds, and must advise the employee about their options in projection, which includes making a complaint to the FWC, which can ultimately impose binding decision on the parties
  • employers will be prohibited from reducing an employee hours, changing pattern of work, or terminating their employment to avoid the operation of the new provision
  • Changes commence 1 July 2024

• A new ramp for workers
  • the Bill will create a new ramp for workers with employees with full rights at one end, regulated workers (employee-like workers) with some rights in the middle, and independent contractors with limited rights at the other end
  • the FWC will have the power to set minimum standards (and also make non-binding minimum guidelines) to regulate Road transport industry contractors and gig workers. They will consider whether the person has low bargaining power, low levels of control over the work they do or are being paid low wages (i.e. less than they would be paid as an employee)
  • the FWC will also have discretion to consider a range of term including payment terms, working hours, record keeping and insurance, but not overtime rates and rostering arrangement
  • Changes commence 1 July 2024

• Other changes
  • Unfair contracts:The Fair Work Commission (FWC) will gain jurisdiction to hear contractors’ disputes about unfair contract terms
  • Road transport:The FWC will gain jurisdiction to set minimum standards in the road transport industry
  • Union delegate right of entry:The FWC will have greater power to permit right of entry to investigate suspected underpayment
  • Family violence discrimination:Employees will not be able to be discriminated against based on experiencing family or domestic violence
  • Industrial manslaughter:Industrial manslaughter will be criminalised federally, with individuals facing imprisonment for up to 25 years and body corporates fines of up to $18 million.

New guidance on work-from-home safety

Safe Work Australia (SWA) has published new resources on managing work health and safety (WSH) risks when workers are doing computer-based work from home. It is noted that WHS laws apply when workers are working from home, in the same way they do in offices and other workplaces/worksites. However, working from home could either change WSH risks or create new WHS risks.

The resources include

• Overview and definitions
• WHS duties
• Workers’ compensation requirements
• Additional resources/links for various information/information sheets
• Learn more

ASIC announces strategic priorities

ASIC has released it’s Corporate Plan for 2023 to 2027, which identifies four strategies priorities:

• Product design and distribution
• Sustainable finance (defined as ESG products/services across financial services markets)
• Retirement outcomes (previously called retirement decision making)
• Technology risks

ASIC’s strategic priorities are implemented through its core strategic projects. The projects identified in last year’s Corporate Plan included scams, sustainable finance, crypto assets, design and distribution obligations, cyber and operational resilience, and digital technology and data.

Strategic priorities identified by ASIC are shaped by key trends in the regulatory environment. Consistent with last year’s Corporate Plan, ASIC identifies those key themes as climate risk, the ageing population, emerging digital technologies and volatility in the crypto assets market.

Business registers program stopped after independent review

The Government announced that it will stop the Modernising Business Register (or MBR) program following an independent review determining that the program could not deliver value for money.

The program was initially designed to transform the company, business and professional registry services of the Australian Government, as well as establishing the new Director Identification number (Director ID) scheme to enhance company trust and reduce legal phoenixing in the Australian economy.

The review identified several key drivers for the program cost blow outs, including:

• a significant underestimation of the complexity when the program was conceived
• significantly greater than planned use of contractors, leading to increased labour costs
• previous Government decisions to expand the scope of the program before it was delivered
• issues emerging due to the previous Government’s decision to transfer responsibility from ASIC to ATO, and
• direct consequences resulting from the COVID – 19 pandemic

The Government has confirmed that the ASIC Director ID scheme will continue to operate.

Disclaimer: This does not purport to be comprehensive or to render legal advice. You should not act based on any information contained in this publication without first obtaining specific professional advice. Consult your legal advisor to determine if this applies to you.