IMPORTANT UPDATES YOU NEED TO KNOW REGARDING THE CLOSING LOOPHOLES BILL
Superannuation Update
Superannuation is now an entitlement under the National Employment Standards in the Fair Work Act as of 1 January 2024. As such, please note the following:
Employees covered by the NES can now seek to remedy unpaid super under the Fair Work Act (if the ATO hasn’t already commenced proceedings in relation to that super).
The NES entitlement to super aligns the Super Guarantee so if you are meeting your obligations under super laws, you are also meeting your obligations under the other. But, if you are in breach of super laws, you will also be breaching the Fair Work Act.
Employees who are in the national workplace relations system because their state referred their powers to make workplace laws to the Commonwealth are exempt from this entitlement although they may have an entitlement under another industrial relations instrument.
An updated Fair Work Information Statement has been released by the Fair Work Ombudsman incorporating this new entitlement – this needs to be provided to all new employees and supersedes earlier versions of the statement. You can download a copy of this document at https://www.fairwork.gov.au/sites/default/files/migration/724/Fair-Work-Information-Statement.pdf.
Important changes to the Fair Work Act - Closing Loopholes Laws
In the coming 12 months, a number of changes to the Fair Work Act are being implemented. However, on the 15 December 2023 the following initial changes were made:
Employees, unions and host employers can now apply to the Fair Work Commission for new types of orders relating to labour hire employees whereby the labour hire employer must pay their employees supplied to a host employer at least the same rate they would receive under the host employer’s industrial instrument.
New discrimination protections for employees experiencing family and domestic violence – it is unlawful for an employer to dismiss an employee who is experiencing these hardships
Small business redundancy rules – if a large business downsizes its workforce to become a small business (under 15 employees), they may still be required to provide severance payments as per large businesses
Workplace delegates now have new rights and protections under the Fair Work Act with new applicable General Protections rules.
Right of entry rules - The requirement for officials assisting a state or territory work health and safety representative to hold an entry permit under the Fair Work Act has been removed.
There are also some changes to workers compensation and workplace health and safety laws as part of the Closing Loopholes Laws.
On 01 July 2024 the Bill also criminalises industrial manslaughter and increases maximum penalties under Federal Occupational Health and Safety (OHS) laws. This change will bring the Federal OHS regime in line with most of the states and territories including South Australia which recently passed the Work Health and Safety (Industrial Manslaughter) Amendment Bill making industrial manslaughter a criminal offence in South Australia.
The Bill will also expand access to workers compensation for first responders in relation to post-traumatic stress disorders; and bring silica and silica-based illnesses in line with asbestos under the Asbestos Safety and Eradication Agency.
Also under the new laws, the intentional underpayment of wages will be criminalised. These changes won't start before 1 January 2025.
Employee Authorised Deductions
Fair Work has always had specific requirements when it comes to making deductions from employees for reasons that could include overpayments etc. However, Fair Work has now provided instruction around employee authorised deductions from pay that are either one-off or recurring; or for specific amounts or for amounts that change from time to time.
In order for an employer to make a lawful deduction under Fair Work, employers need written permission from the employee and follow the rules about when these deductions are allowed and how they need to be recorded. There may also be further information about lawful deductions in Awards and registered agreements.