Changes to Fair Work Act

Employees, labor unions, and host employers are now able to seek new types of orders from the Commission concerning labor hire employees.

Under these orders, a labor hire employer is obligated to pay their employees, who are assigned to a host employer, at least the same rate they would receive under the host employer’s:

  1. Enterprise agreement, or
  2. Another type of workplace instrument that outlines terms and conditions of employment (e.g., a public service determination).

These orders are also subject to specific regulations.

Responsibilities of host employers include:

  • Informing the labor hire employers covered by the order about the approval of a new enterprise agreement, which would become the instrument covered by the order if enacted.
  • Applying to the Commission to modify the order if they engage another labor hire employer and their employees to perform the same work as those already covered by the order.
  • Notifying potential and successful tenderers about the potential impact of the order on them.

Exceptions to making an order include situations where it’s deemed unfair or unreasonable, where the arrangement is for a service rather than labor supply to a host employer, or where the host employer is a small business.

Additionally, an order won’t affect employees engaged in training under state and territory laws or certain short-term employment arrangements.

Disputes regarding orders can be brought to the Commission for resolution if they can’t be resolved at the workplace level.

Employers failing to comply with the new provisions may face penalties, including prohibitions on arrangements to prevent or evade the operation of an order, which came into effect on September 4, 2023.

Criminalization of intentional wage underpayments will commence no earlier than January 1, 2025. Employers will be liable if they fail to pay amounts owed to employees intentionally.

Exceptions to these provisions include specific circumstances such as superannuation contributions or unintentional underpayments.

Penalties for non-compliance vary depending on whether the offender is a company or an individual.

Furthermore, a Voluntary Small Business Wage Compliance Code will be established, allowing small businesses to avoid criminal prosecution if they underpay employees, though details about this code are forthcoming.

New discrimination protections against adverse action due to family and domestic violence took effect on December 15, 2023.

Small business redundancy exemptions have been adjusted, requiring non-small businesses that become small businesses due to insolvency to still pay redundancy pay to eligible employees.

Workplace delegates now have expanded rights and protections under the Fair Work Act, including access to paid time for training and representation of industrial interests.

Other changes include the removal of the requirement for officials assisting state or territory work health and safety representatives to hold an entry permit under the Fair Work Act, compulsory conciliation conferences in protected action ballot matters, and changes to workplace health and safety and workers compensation laws, including amendments to the Commonwealth Work Health and Safety Act.

Written by Ross Ahmadzai

15 Feb, 2024

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