Federal workplace bill: Dead in the water or renewed interest?

On 4 September, the federal government introduced the Fair Work Amendment (Closing Loopholes) Bill 2023 (Loopholes Bill) into Parliament. Come last Thursday (9 November), the Senate dissected the bill – voting to split off four parts for urgent passage.

The dissected elements were dubbed “non-contentious” and ripe for passage, separate from the bulk of the Loopholes Bill. Though Labor did not vote against the split, it did voice its strong opposition. To bring the vote into effect, Labor would have to reintroduce the split elements into the lower house – the likelihood of which is dubious.

As the spotlight of debate focuses on political intrigue, clashing reds and blues, and straw men of all kinds, returning to the actual wording of the bill can help to contextualise and centre discussion. An earlier HR Leader article did just that. Briefly, the bill stands to make the following changes to the Australian industrial relations landscape:

1. Broadening the definition of “casual employee”.
2. Tighter requirements on businesses to offer casual conversion.
3. Broadening the definition of “employee” to better distinguish from “contractor’.
4. Tougher penalties for underpayment and new criminal offence of “wage theft’.
5. Tougher regulations around labour hire arrangements.
6. Protections for gig workers.
7. Employee protections for victims of domestic violence.
8. Creation of new industrial manslaughter offence.

The split

Among the elements to be split from, and passed separately to, the bulk of the Loopholes Bill are: support for first responders with post-traumatic stress disorder, silica dust regulation, closing of a loophole that allows big businesses to claim small business exemptions during insolvency to avoid redundancy payments, and protections for employees who experience domestic violence.

Opponents of the split see the move as yet more politicking on behalf of business influences who want to see the Loopholes Bill further delayed and chipped away at. For instance, ACTU president Michele O’Neil said: “The Liberal Party did what the Liberal Party always do – which is line up with big business and do their bidding.”

On the other hand, proponents of the split say they want urgent passage of vital elements of the bill. Not only will this mean vulnerable groups to be protected under the bill – such as victims of domestic violence and first responders with post-traumatic stress disorder – will get support sooner, but it will prevent throwing the baby out with the bathwater, so to speak.

“We encourage the government to accept the Senate vote and split the bill given the widely held concerns with the bill as it stands,” said Ai Group chief executive Innes Willox. “If passed in its entirety, the bill would introduce radical workplace changes that would disadvantage both industry and workers.”

The consequences

As the Loopholes Bill is set to undergo a lengthy review process, likely well into 2024, Labor is now facing pressure to introduce the split elements into the lower house sooner rather than later.

According to Ms O’Neil, however, the entire bill – not just the split elements – is urgent. Similarly, Labor minister Murray Watt accused proponents of the split of “cherry picking some things as being important” while other matters of comparable importance have been overlooked.

“Things like wage theft, recklessly killing workers at work, and leaving those loopholes open for labour hire workers to be exploited,” said Mr Watt. “What we’re saying in leaving them out is that their rights don’t matter.”

That said, many of the provisions of the Loopholes Bill, were they to pass today, wouldn’t come into effect until as late as 2025, said shadow attorney-general Michaelia Cash. It follows, in Ms Cash’s view, that appeals to expediency and urgency are not available to detractors of the split.

A Senate inquiry into the bill is due to report on 1 February 2024.

For more on the bill, read here.