Concerned Senators and employers doing loops around Closing Loopholes Bill

A Senate Inquiry into the Government’s Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Bill) to amend the Fair Work Act 2009 (Cth) (FW Act), and health and safety legislation, is continuing. While the Government was looking to pass the Bill in full, this year, this appears problematic.

We provide the following update.

Tony Burke, the Minister for Employment and Workplace Relations, has said that the four major elements of the Closing Loopholes Bill are criminalising wage theft, introducing minimum standards for workers in the gig economy, closing the forced permanent casual worker loophole and closing the labour hire loophole. A summary of the explanatory memorandum can be found here.

The Government had been seeking that all the changes in the Bill, some of which are more controversial than others, be made together.

However, on 9 November 2023, Senators Jacqui Lambie and David Pocock secured support in the Senate for four private senators’ bills that bring forward sections of the Closing Loopholes Bill:

1. Fair Work Legislation Amendment (First Responders) Bill 2023 – which proposes to require insurers of first responders in the Commonwealth and ACT jurisdictions to presume that PTSD was caused by a first responder’s job, unless the insurer can establish otherwise.
2. Fair Work Legislation Amendment (Asbestos Safety and Eradication Agency) Bill 2023 – which proposes to give workers the right to safe and healthy workplaces by expanding the current remit of the Asbestos Safety Eradication Agency (ASEA) to include prevention of silica-related diseases.
3. Fair Work Legislation Amendment (Strengthening Protections Against Discrimination) Bill 2023 – which proposes to prevent employers from discriminating against people that are being subjected to family and domestic violence by making it a protected attribute under the Fair Work Act 2009.
4. Fair Work Legislation Amendment (Small Business Redundancy Exemption) Bill 2023 – This bill provides an exception to the operation of the small business redundancy exemption in the context of large businesses that are bankrupt or in liquidation to stop employees missing out on their redundancy payments. This is relevant in circumstances when a larger business incrementally downsizes due to insolvency, either in the period leading to liquidation or bankruptcy, or afterwards, and then falls below the 15-employee threshold and technically becomes a small business. In that circumstance, currently, the last employees of a large business that has become insolvent do not receive a redundancy payment. The Bill seeks to change that so that the last employees will be entitled to redundancy pay.

The move by the Senate Crossbench may not bode well for the Closing Loopholes Bill in its current form, signalling that the balance of the Closing Loopholes Bill does not have the necessary support at this stage to pass into legislation, and will likely be subjected to an extended period of scrutiny into 2024.

We will keep you up to date with developments.

If you have any queries or require any advice in relation to employment and industrial relations issues, our Employment, Workplace Relations and Safety team at McCabes Lawyers is able to assist, please feel free to get in touch.