Third Tranche of IR Reforms – Closing the Loopholes Bill

The third tranche of IR reforms, which have been put forward by the Fair Work Amendment (Closing Loopholes) Bill 2023 (the Bill) is now before Parliament. The Bill proposes significant changes that have the potential to have pervasive and unintended consequences, particularly with the increased power of the Fair Work Commission (FWC).

We provide a summary below, outlining the proposed changes that if approved are most likely to impact on the Real Estate Industry and employers in general.

1. Changes to the definition of a casual employee

The Bill proposes a new definition for “casual employee” which will consider the totality of the employment relationship. This proposes to boost casual employee rights and security through an anti-avoidance framework and increased access to a small claim’s jurisdiction.

2. Changes to the Definition of Employment

A new “ordinary” meaning definition of employee and employer, which is designed to revert to the law of employee and independent contractor characterisation to a multi factorial test which considers several indicia regarding whether a person is an employee or independent contractor.

3. Sham Contracting Agreements

An amendment to the defence that is available to an employer who misrepresents employment as an independent contracting arrangement. This provides that an employer will not be liable if, at the time of the misrepresentation, the employer reasonably believed that the arrangement was a contract for employment.

4. Unfair Contracts

Empowering the Fair Work Commission (FWC) to make new orders in relation to unfair contract terms in independent contracting arrangements.

5. Same Job Same Pay Orders

Empowering the FWC to make orders requiring employers, who supply their employees to perform work for a ‘regulated host employer’ to pay their employees the same rate of pay as employees of the host employer who perform work of the same kind.

6. Workplace Delegates' Rights

New requirements on employers to allow union workplace delegates’ paid time to attend training and reasonable time and facilities at the workplace to communicate with employees who are current or prospective union members.

7. Underpayments, Compliance and Enforcement

New criminal offences for certain underpayments, as well as higher civil penalties and lowering the bar for what constitutes a ‘serious contravention’ to include an element of recklessness.

8. Transition from Multi-Enterprise Agreement

Empowering the FWC to determine certain model terms for enterprise agreements and changes to the way in which new single-enterprise agreements interact with existing supported bargaining agreements or single-interest employer agreements.

9. Workplace Health and Safety

Introducing a Commonwealth industrial manslaughter offence and increasing maximum penalties that are available.

10. Strengthening Protections Against Discrimination

Introducing stronger protections against discrimination for employees who have been, or continue to be, subject to family and domestic violence.

Written By Michael Franzone – Associate, Workplace Relations

CCIWA, Business Law WA and REEFWA has taken all reasonable care in preparing this document. The contents of this document do not constitute legal advice and should not be relied upon as such. Specific advice for your situation should be sought from CCIWA, Business Law WA or a professional adviser before any action is taken. Neither REEFWA, CCIWA nor Business Law WA accept responsibility for any claim that arises from any person acting or refraining from acting on the information contained in this document.

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