Closing Loopholes Bill "Part 1" Passes Parliament After Last Minute Deal

Yesterday we saw some significant developments relating to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (“Closing Loopholes Bill”):

• the Senate passed a substantial part of the Closing Loopholes Bill after making a deal with key crossbench senators, David Pocock and Jacqui Lambie; and

• the House of Representatives accepted the Senate’s amendments to the Closing Loopholes Bill and it passed parliament (74 votes to 52).

What was the deal?

The Senate voted to split the legislation into two Bills. The first of the two Bills was passed yesterday, while the other (known as the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023) will be considered when the Senate returns early next year.

What parts of the Closing Loopholes Bill were passed?

The Bill passed yesterday includes the non-contentious parts of the Bill, such as:

• protecting family and domestic violence victims from adverse action being taken against them by their employer;

• making it simpler for emergency service workers to claim for post-traumatic stress disorder (“PTSD”);

• bringing silica into line with asbestos under the Asbestos Safety and Eradication Agency, including coordination on silica safety and silica related diseases; and

• protecting redundancy pay for employees who may be working for a larger business that becomes a small business due to insolvency by preventing them from claiming the small business redundancy exemption to avoid redundancy payments.

The Bill also includes parts relating to:

• closing the labour hire “loophole” by providing for same job, same pay for labour hire workers;

• criminalising intentional wage and superannuation theft; and

• establishing a new criminal offence of industrial manslaughter.

The second Bill will consider the other parts of the proposed legislation dealing with more complex and controversial matters, including changes proposed in relation to:

• minimum standards for the gig economy;

• casual employment;

• definitions of employment;

• minimum standards for the road transport industry;

• sham arrangements and more.

Concerns raised about the passing of the Bill

The amendments passed yesterday have been described as some of the less controversial ones, although for employers who rely on a labour hire workforce, the changes regarding same job same pay will likely be significant.

While some have welcomed the changes, others have made their views clear about the unwelcome impacts they believe the legislation with have, see for example Media Releases from:

- The Australian Chamber of Commerce and Industry: link

- The Minerals Council of Australia: link

- The AI Group: link

What should Employers be doing?

Employers should continue to watch the progress of the Closing Loopholes Bill and ensure their business is ready for the changes.

If you need advice regarding how the changes may affect your business and how you can respond to the changes, please get in touch with our employment and industrial relations law team.