22 Dec HR LAW NEWSLETTER – DECEMBER 2023

Welcome to the December 2023 HR Law Newsletter.  As we say goodbye to 2023 and prepare to welcome in 2024, we would like to take this opportunity to give a big thank you to all our valued clients, colleagues and on-line followers for your continued support during 2023.  It has been our pleasure to work with you and support your business in managing all of your employment law matters. The HR Law team look forward to continuing to support and work with you in 2024. The team at HR Law would like to wish you a very Merry Christmas and Happy New Year.  Whatever your plans, we hope you all have a safe and happy festive season. 

FAIR WORK LEGISLATION AMENDMENT (CLOSING LOOPHOLES) BILL 2023

On 7 December 2023, key portions of the Fair Work Act Legislation Amendment (Closing Loopholes Bill) 2023 (“Part 1 Bill”) were passed by the Senate.   The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (“CL Act”) received royal assent on 14 December 2023.

The Part 1 Bill is the first half of the original Fair Work Act Legislation Amendment (Closing Loopholes Bill) 2023 introduced into Parliament on 4 September 2023.  For more details, please refer to our previous article on the Bill here.

Background

Following discussion with the Greens and Senate cross-benchers, an agreement to split the Bill into two parts was made.  The CL Act carves out key provisions such as the:

• criminalisation of intentional wage theft,
• new protections against discrimination,
• better support for first responders with post-traumatic stress disorder,
• introduction of a Commonwealth industrial manslaughter offence (applicable to Commonwealth departments, agencies and non-Commonwealth licensees); and
• new provisions regarding increased rates of pay for labour hire employees.

The balance of provisions proposed by the Bill will be contained in a separate Fair Work Legislation Amendment (Closing Loopholes No.2) Bill 2023 (“Part 2 Bill”). Part 2 will include the changes on casual employment, definitions of employment, regulated workers, sham arrangements and other more complex and contentious provisions. Part 2 will be debated in the new year following the delivery of the Senate Inquiry Report in February 2024.

Key Provisions

We have set out below the key changes to the CL Act and when they come into effect below:

Commencement Date	Amendments
15 December 2023	Small business redundancy exemption provisionsRegulated labour hire arrangement jurisdictionWorkplace delegates’ rights provisionsProtections for those subject to family and domestic violenceAmendments to compulsory conciliation conferences in protected action ballot order matters
1 July 2024	Determinations varying modern awards to include a delegates’ rights termDelegates’ rights term must be included in a workplace determination made on or after 1 July 2024Delegates’ rights term must be included in an enterprise agreement approved by vote on or after 1 July 2024
1 November 2024	Regulated labour hire arrangement orders can commence operation
1 January 2025*	Wage theft provisions apply   *The later of 1 January 2025 and the day after the Minister declares a Voluntary Small Business Wage Compliance Code.

With the Senate Committee due to issue its Inquiry Report by 1 February 2024, HR Law will keep you updated on the Part 2 Bill.

REGULATIONS – DEDUCTIONS

From 30 December 2023, new rules apply for employee authorised deductions from pay that are:

• either one-off or recurring; or
• for specific amounts or for amounts that change from time to time.

Employers can only make employee authorised deductions where the deductions are mainly for the employee’s benefit.

When drafting a written authorisation for a deduction for a specified amount, an employer must specify:

• the amount of a deduction;
• the purpose of the deduction;
• the date on which the deduction is to be made;
• the name of the person to whom the amount of the deduction is to be given.

When drafting a written authorisation for a deduction for multiple or ongoing deductions, an employer must specify:

• the purpose of the deductions;
• if the deductions are for a specified amount or amounts – those amounts;
• either:
  • the dates on which the deductions are to be made; or
  • the date after which, and the frequency with which, the deductions are to be made;
• the name of the person to whom the amounts of the deductions are to be given.

Deductions  have to be recorded in writing and kept in an employee’s records. Pay slips also have to state the:

• amount of any deduction
• name, or name and number of the fund or account the deduction was paid into.

To access the Regulations, click here.

FIXED TERM CONTRACTS

A reminder that the remaining limits on fixed-term contracts as a result of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 took effect on 6 December 2023.

The relevant provisions in the Fair Work Act 2009 (Cth) include:

• A limit on the length of fixed term contracts;
• The Fair Work Commission will have powers to deal with disputes;
• A requirement to give all fixed term employees a Fixed Term Contract Information Statement.

The Fair Work Commission released the Fixed Term Contract Information Statement (“Statement”).

Employers are required to provide employees engaged on a new fixed term contract with a copy of the Statement when they enter into the contract.

The Statement must be provided in addition to the Fair Work Information Statement, which must be provided to all new employees.

To access the Statement, click here.

ZOMBIE AGREEMENTS

Under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), all zombie agreements automatically terminated on 7 December 2023.

Any employers who did not seek an extension of the termination of a zombie agreement will (as well as their employees) now be automatically covered by a modern award (if applicable). For employers who have never been covered by a modern award, this could pose a significant change to their employment arrangements.

HUMAN RIGHTS COMMISSION

A reminder that from 12 December 2023, the Australian Human Rights Commission has new powers to ensure compliance with the positive duty in section 47C of the Sex Discrimination Act 1984 (Cth) (“the Act’).

The positive duty in section 47C of the Act requires employers and “persons conducting a business or undertaking” (PCBU) to take reasonable and proportionate measures to eliminate, as far as possible:

• discrimination on the grounds of sex in a work context;
• sexual harassment in connection with work;
• sex-based harassment in connection with work;
• conduct creating a workplace environment that is hostile on the grounds of sex;
• related acts of victimisation.

The Commission has released a Policy to provide information about how the Commission intends to perform its functions in relation to the positive duty.  You can access it here.

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The content of this newsletter is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.