FWO Urges Compliance with Closing Loopholes Bill

18 January 2024

On 15 January 2024, the Fair Work Ombudsman Anna Booth stressed the need for employers and employees to educate themselves on the new Closing Loopholes laws to ensure they are compliant.

Most of the changes introduced started on 15 December 2023, while others will commence between now and 2025, giving employers time to get their house in order.

See some of the important changes to consider below.

Equal Pay for Labour Hire Workers

As of 15 December 2023, employees, unions and host employers are able to apply to the Fair Work Commission (FWC) for a regulated labour hire arrangement order. Regulated labour hire arrangement orders will govern workers’ pay arrangements between employers who supply employees to perform work for a “regulated host”, those employees and the “regulated host”. This means that employers will be required to pay labour hire employees the same as employees who are employed directly by the host employer.

Under an order, they must be paid at least what they would receive under a host employer’s enterprise agreement, a workplace determination, an equivalent public sector determination and other prescribed instruments made under Commonwealth, State and Territory Laws.

New Discrimination Protections

From 15 December 2023, employers cannot discriminate by taking adverse action against an employee because they have been subjected to family and domestic violence. This also prohibits awards and enterprise agreements from including terms that discriminate against an employee because they are experiencing or have experienced family and domestic violence.

Workplace Delegate’s Rights

As of 15 December 2023, workplace delegates were provided further rights and protections under the Fair Work Act. The changes have entitled delegates to:

  • represent the industrial interests of members and potential members of the employee organisation (including in disputes with their employer)
  • reasonable communication with members and potential members about their industrial interests
  • reasonable access to the workplace and its facilities to represent those industrial interests.

The changes also introduce new general protections for which penalties may apply. An employer must not:

  • unreasonably fail or refuse to deal with the workplace delegate
  • knowingly or recklessly make a false or misleading representation to the workplace delegate, or
  • unreasonably hinder, obstruct or prevent the exercise of the rights of the workplace delegate.

Right of Entry

From 15 December 2023, officials assisting a state or territory WHS representative will not be required to hold an entry permit.

Criminalising Intentional Wage Underpayments

Intentional underpayment of wages by employers will become a criminal offence no sooner than 1 January 2025.

Under these provisions, employers will commit an offence if:

  • they’re required to pay an amount to an employee (such as wages), or on behalf of or for the benefit of an employee (such as superannuation) under the Fair Work Act, or an industrial instrument
  • they intentionally engage in conduct that results in their failure to pay those amounts to or for the employee on or before the day they’re due to be paid.

Penalties for a company will include:

  • if the court can determine the underpayment, the greater of 3 times the amount of the underpayment and $7.825 million, or
  • if the court can’t determine the underpayment, $7.825 million.

Penalties for an individual will include:

  • maximum of 10 years in prison
  • if the court can determine the underpayment, the greater of 3 times the amount of the underpayment and $1.565 million, or
  • if the court can’t determine the underpayment, $1.565 million.

These provisions do not apply if the employer did not intentionally underpay their employees or if they pay incorrect amounts by mistake.

If you have questions regarding compliance with the new Closing Loopholes laws, please contact us via the link below.