Wage theft laws clear Parliament, while other key elements shafted to 2024

On 7 December, key aspects of the federal government’s workplace bill passed the Senate. Among the reforms are a new criminal offence of wage theft, better pay for labour hire workers, and protections for workers affected by PTSD and domestic violence.

On the last sitting day of the parliamentary calendar, part one of the Closing Loopholes Bill passed into law, while the second part was postponed for further consideration early next year.

If you’re Tony Burke, the workplace relations minister, last Thursday (7 December) was a “great day for workers’ wages and safety”. If you’re a representative of big business, you might have a different take on the matter.

What’s new?

The changes are wide-ranging but can be roughly divided into three classes of work reform: pay, discrimination, and safety. Specifically, the reforms include the following:

• Pay: “Same job, same pay” rules for labour hire and a new criminal offence of intentional wage theft.
• Discrimination: Stronger adverse action protections for employees subject to family and domestic violence and better support for responders with post-traumatic stress disorder (PTSD).
• Safety: New industrial manslaughter offence and silica dust regulation.

When, last month, the Senate voted to split certain elements from the Closing Loopholes Bill for immediate passage, commentary was divided. The idea was to pass the bill’s less contentious and more urgent aspects while giving deeper consideration to its more complex components. Detractors of the split, however, saw it as an example of opportunistic politicking to imperil the fate of the reforms.

For example, the Australian Council of Trade Union’s president, Michele O’Neil, said the split seemed arbitrary and that every aspect of the bill should be seen as urgent.

“No worker should be left behind, and splitting the bill leaves behind changes that will make a world of difference to struggling families across Australia right now,” said Ms O’Neil. “Every element is urgent and important, especially during a cost-of-living crisis.”

Despite the framing, some aspects of the bill just passed are far from non-contentious. Most notably, the labour hire protections.

As noted in an earlier HR Leader article, the “same job, same pay” requirements would require businesses to offer the same pay – including base rates, bonuses, incentive-based payments, allowances, and overtime to contract workers as are already afforded to directly engaged employees.

The requirement, BHP said, would cost the company an additional $1.3 billion a year while “potentially undermining the viability of contractual work arrangements in the resource sector.”

A mixed response

Despite the ACTU’s earlier criticism of the vote to split, secretary Sally McManus has praised the early passage – labelling it a “welcome Christmas present for working people”.

“The Australian public understand that this legislation delivers better rights for workers, which deliver better wages during the cost-of-living crisis. These changes will make work a safer place to be, as well as give workers a boost at a time when they really need it,” said Ms McManus.

Since the bill’s conception, business groups have been railing against its proposals. While some anticipated the split would “blunt a fierce employer campaign” against the bill, others are expecting the criticism to continue.

As noted by Ms McManus: “The companies that will be crying loudest about these changes are some of Australia’s biggest and most profitable … They can well afford these changes, but they fought against them as they don’t want to see their mega profits take the smallest of hits.”

Motives aside, big business certainly has validated the projections of Ms McManus. BHP president Geraldine Slattery, for example, called the move “extremely disappointing”, while the Minerals Council of Australia chief executive, Tania Constable, labelled the split a “declaration of war” on business interests.

“By rushing the controversial workplace changes through the Senate, the government has dramatically increased the cost of doing business in Australia,” said Ms Constable. “Costs that will undoubtedly flow through to consumers.”

The National Farmers Federation echoed this sentiment, saying: “We’ve consistently called out this bill for being fraught with issues that it will make it harder and more expensive to create employment opportunities in farming.”

Stay tuned for our coverage of the remaining elements of the workplace bill and a forthcoming article on what the changes will mean for business leaders.

“Employers should watch this space and continue to monitor the passage of the amended Closing Loopholes Bill closely and prepare for the progress of the Closing Loopholes Bill No. 2 to ensure their business is equipped to respond to the changing industrial landscape in the new year,” advised Clayton Utz.