In the final hours of Parliament for the year the Government secured the passage of a number of its key amendments to the Fair Work Act 2009 (Cth) (the “Act”).

The substantive changes include:

• criminalising “wage theft”, which will introduce the penalty of imprisonment;
• a mechanism for the Fair Work Commission (“FWC”) to make orders that labour hire workers are to be paid in accordance with an instrument applicable to the “host” employer’s workforce (previously known as the “same job, same pay” policy now referred to as the “Closing the labour hire loophole” provisions);
• new delegates rights provisions, which include:
  • requiring a “delegates’ rights” term in all modern awards, enterprise agreements and workplace determinations;
  • providing explicit rights to delegates in the workplace;
• including the characteristic of “subjection to family and domestic violence” as a protected characteristic in the General Protections of the Act;
• a removal of the small business exemption from paying redundancy, where the business became a small business as a result of reductions in head count that are related to insolvency events; and
• introducing industrial manslaughter as an offence in the Work, Health and Safety Act 2011 (Cth).

All of the changes, other than the criminalising wage theft commenced on 15 December 2023. The criminalising wage theft provisions commence either 1 January 2025 or the day after the Minister declares (releases) a Voluntary Small Business Wage Compliance Code, whichever is the later date. It is also relevant to note that while the “Closing the labour hire loophole” provisions have commenced, the FWC will not be able to make any orders that have effect before 1 November 2024.

Many of the provisions are complex and create new obligations on employers. PCS will be providing further updates in the new year on some of these key reforms.

Michael Nguyen, Senior Associate