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Closing Loopholes and multiple Enterprise Agreements
The Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 passed both houses on 7 December 2023 and was given royal assent on 14 December 2023. The Fair Work Legislation Amendment (Closing Loopholes No.2) Bill 2023 passed both houses on 12 February 2024 and was given royal assent on 26 February 2024.
Details of how some of the changes will impact businesses are somewhat unclear and will require careful consideration.
Some of the major changes that will impact our clients include:
- A new definition of casual work
- The right to disconnect
- A new definition of employment (which will impact sub contract agreements and contractors)
- A new Independent Contractors Act which will cover all contractors who earn less than the high income threshold
- A right of entry exemption certificate
- Civil penalties for wage underpayments
- Minimum standards for Gig workers
- Multi- enterprise bargaining
The changes are certainly far reaching and will impact workplace conditions.
Multi-enterprise Bargaining
Our clients who are concerned about the potential increased involvement of unions in their workplace should read the advice prepared by Hilliard & Berry Solicitors which deals with multi-enterprise bargaining and union involvement. Click here.
From 6 June 2023, unions have been able to apply to the Fair Work Commission (FWC) for authorisations to bind employers into bargaining for multi-enterprise agreements. Depending on the bargaining stream (ie. whether it's under the "supported" or "single-interest" stream), the FWC will, in deciding whether to grant these authorisations, consider criteria including:
- prevailing pay and conditions in the relevant industry or sector, ie. are employees paid at, or close to, award rates of pay? ("supported" stream)
- whether the employers have clearly identifiable common interests (both streams)
- reasonably comparable operations and business activities between the employers ("single interest" stream)
- will bargaining be manageable? ("supported" stream).
There are important potential "carve outs" for employers to not be roped into multi-enterprise bargaining - including, for example, where they already have an in-term enterprise agreement in place for their relevant employees, or, provided certain criteria are met, they are already in bargaining for an enterprise agreement. Also importantly, under these changes, employers could be "roped into" multi-enterprise agreements by the FWC, after they have already been made by unions and other employers.
The real question for employers is – Should I commence negotiations for a single enterprise agreement now?
Read our legal advisors comments here.
Casuals
The changes to casual workers will impact most clients. This will require, at a minimum, changes to the employment agreements that are in use. We will contact clients further to discuss your individual circumstances.
Contractors
We will be addressing the changes to Contractors and Sub Contractors in further correspondence. Please stay tuned for further updates in this area.
Please contact us at info@businesssavvy.com.au for further information about any of the amendments.
Free consultation
We will arrange a 30 minute teleconference with our legal team to discuss the options available to your business.
Contact info@businesssavvy.com.au or 0498 222 202 to arrange a consultation.
Fair Work Legislation Amendment Act 2023 (Closing Loopholes)
A Comprehensive Guide to the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 and its Impact on Workplace Relations
The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) has now passed into law. Significant amendments to the Fair Work Act 2009 (Cth) (FW Act) and other workplace health and safety regulations commenced on 15 December 2023.
To gain an in-depth understanding of the changes, the attached paper from our legal advisors explains each change, the implications, what it means for “you” the employer, small businesses; and the enhanced protections it affords employees
The key changes relate to the following areas:
Criminalizing Wage Theft: A stringent stance against wage theft, ensuring legal consequences for such offenses.
Closing the Labour Hire Loophole: Addressing and rectifying vulnerabilities in the labour hire system.
Enhancing Workplace Delegates' Rights: Strengthening the role and influence of workplace delegates.
Stronger Protections Against Discrimination, Adverse Action, and Harassment: Fortifying legal safeguards to combat workplace discrimination and harassment.
Conciliation Conference Orders: Introducing measures for effective dispute resolution through conciliation conferences.
Entry to Assist Health and Safety Representatives: Facilitating access for assistance to Health and Safety Representatives.
Amendments to the Asbestos Safety and Eradication Agency Act 2013: Addressing asbestos-related concerns through legislative adjustments.
Amendments to the Safety Rehabilitation and Compensation Act 1988: Enhancing provisions related to safety rehabilitation and compensation.
New Offence of Industrial Manslaughter and Other Work, Health, and Safety Reforms: Introducing a novel offense of industrial manslaughter, alongside broader health and safety reforms.
A summary of the changes provided by our advisors is attached here.
Introducing our Workers Compensation Advisory Service
We are delighted to offer our Workers Compensation Advisory Service. We understand that managing workers compensation can be complex and time-consuming. We're providing a service to streamline the process, reduce costs, and ensure regulatory compliance.
Our ultimate goal is to save you time and money while optimizing your workers compensation processes.
How We Help
Our mission is to simplify the management of workers compensation for our clients and deliver tangible benefits:
Provide Client Support: We are your dedicated partner, making the management of workers compensation claims easier than ever before.
Claims Minimization Strategies: We identify strategies to minimize claims and reduce costs.
Insurer Collaboration: Our team collaborates closely with insurers to achieve favorable outcomes.
Compliance Assurance: We ensure your compliance with workers compensation regulations, safeguarding your business from potential liabilities.
Deep Dive into What We Do
Cindy Baker is our dedicated claims advisor, here’s how she can help:
Reviewing Compliance: Assess your workers compensation compliance to ensure you meet all regulatory requirements.
Claims Review: We scrutinize your workers compensation claims to identify areas for improvement and cost reduction.
Conduct Stakeholder Claims Reviews: Our in-depth assessments involve all relevant stakeholders, ensuring a collaborative and effective claims management process.
Claims Procedure Advice: We provide expert advice on efficient claims procedures, enhancing the overall experience for both you and your employees.
Intervention in Difficult Claims: We step in to assist in resolving long-term, challenging claims, helping to bring them to a swift and satisfactory conclusion.
Claims Follow-Up: We maintain open lines of communication with claims agents and insurers, advocating on your behalf for the best possible outcomes.
Injury Management Guidance: We provide advice on best practices for injury management, promoting a safe and healthy workplace.
For more information about our Workers Compensation Advisory Services, reach out to us at info@bsrm.com.au or contact Cindy directly at cindy@bsrm.com.au or 0437 226 391.
Looking forward to working with you to take the worry out of workers compensation.
Gantry Cranes - Are your Operators Adequately Trained?
The use of mechanical plant, such as Gantry Cranes, offers numerous benefits and improves efficiency in our daily work. These technological advancements, however, do not eliminate workplace risks associated with moving plant or unstable loads. Adequate training is crucial for ensuring a safe workplace.
Although a High-Risk Work Licence may not be mandatory, we strongly recommend operators acquire a license. Injuries sustained due to the high-risk work can have catastrophic consequences.
A Person Conducting a Business or Undertaking has a primary duty of care to provide necessary information, training, instruction, and, supervision to protect all individuals from health and safety risks in the work place. Obtaining a High-Risk license assists organisations to fulfill these Work Health and Safety commitments.
Click here for details for licences and the requirements.
The SafeWork assessor, (in your State) will evaluate and assess your practical skills during your training with Registered Training Organisation. When you are deemed competent, a Statement of Attainment for your specific licence will be acquired. An application for a High-Risk Work License can be applied for through the Safe Work Organisation in your State.
High risk work licenses are recognised nationwide, and valid for five years.
Fair Work Act Amendment (Secure Jobs, Better Pay)!
The Australian Government has passed the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. This legislation introduces new workplace laws and changes a range of existing rules.
Some of these changes started on 7 December 2022, while others start later, in June 2023 and December 2023.
Key changes
The new laws and rules relate to:
- prohibiting pay secrecy and job ads that contravene the Fair Work Act
- flexible work and fixed term contracts
- anti-discrimination and prohibiting workplace sexual harassment
- unpaid parental leave changes
- enterprise agreements and enterprise bargaining
- equal remuneration and establishing expert panels
- changes to the small claims process
- abolition of the Australian Building and Construction Commission (ABCC) and the Registered Organisations Commission (ROC).
A summary of the changes provided by our legal advisors is attached here.
What does this mean for you?
The changes introduced are the most wide ranging changes since the Fair Work Act was introduced in 2009. It is important that all employers review their employment practices to ensure compliance with the new laws.
- Employers with Enterprise Agreements should review those agreements, the expected expiry date and prepare to negotiate a new agreement under the new framework.
- Employers should review their Employment Contracts for compliance.
- Fixed term employment arrangements will need to be reviewed and in some cases replaced.
- Harassment and discrimination policies will need review.
- Construction industry documents and practices may need revision.
How we will help?
Over the next months we will release further information and guidance to assist clients implement any necessary changes and achieve compliance.
HEAT OF THE MOMENT RESIGNATION
DID YOU KNOW?
Under the Fair Work Act 2009 ('Act') a person has been dismissed if that person resigned and was forced to do so because of conduct of the Employer.
This means that an Employee who resigns in the heat of the moment may actually be deemed to have been dismissed and therefore is protected by the Unfair Dismissal provisions of the Act.
WHAT DOES THIS MEAN?
Although the Employee has 'indicated' that they are resigning from their employment, it does not mean that they intended to do so. The resignation may simply be an impulsive reaction and therefore the Employee has not had the opportunity to consider the implications of the resignation.
It is important that the Employer is certain with their interpretation of the circumstances surrounding the termination. The steps below are a guide as to how certainty can be achieved:
- Conduct a close review of the events leading up to the resignation including the conduct of managers and supervisors.
- Allow the Employee a reasonable time to consider the resignation.
- Have a follow-up discussion with the Employee to confirm their intention regarding resignation.
- Once termination is confirmed, set out terms in writing and provide a copy to the Employee.
- Finalise the employment, which includes payment of the termination entitlements in accordance with the Modern Award / Fair Work Act 2009.
- With any termination / dismissal, it is open to the Employee to lodge an application for an Unfair Dismissal Remedy with the Fair Work Commission.
In a dispute, a 'heat of the moment' resignation would likely be seen as a 'special circumstance' and therefore the termination is not a result of the Employees resignation but is in fact a dismissal.
Where the termination is a 'dismissal' considering the conduct of the Employer, likely outcomes will be compensation or reinstatement. Compensation in this jurisdiction may be up to 26 weeks pay.
FINAL WORD
In order to ensure that the termination is a resignation and not a dismissal the Employer should:
- Take all reasonable steps to clarify the intention of the Employee.
- Always confirm the clarification of the intention in writing, along with the terms of the termination.
Should you be unsure of the circumstances regarding an Employees resignation, please seek our advice.
ALCOHOL & HIGH RISK WORK
The person conducting a business or undertaking (employer or principal contractor) has a primary duty to ensure that risks in the workplace are eliminated so far as is reasonably practicable and if it is not reasonably practicable
to do so, the risks must be minimised so far as is reasonably practicable.
Health and safety risks exist in all work environments and work practices. However, high risk tasks by their nature, present significant risk to health and safety and therefore will often require more stringent controls in order to adequately minimise the risks so far as is reasonably practicable.
The most effective way to demonstrate that you take reasonably practicable action towards meeting your WHS obligations is to have clear, documented policies and procedures that outline the management of the risks associated with drugs and alcohol in your business.
To assist you with the management of Drugs and Alcohol we have uploaded a template policy that you can customise to reflect your business practices. We also provide an Advice Line where we can answer any questions you may have.
Click here to download the latest D&A Policy and Testing Procedure
Click here to download full article
If you need our assistance, please Contact Us.
Need help? HR/OHS advice? Business Savvy Risk Management advisors are available to assist you with all your HR and OHS needs. Contact Business Savvy Risk Management on (02) 8076 6067 or email admin@businesssavvy.com.au