FAIR WORK LEGISLATION AMENDMENT (CLOSING LOOPHOLES) BILL 2023

2022-2023

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Fair Work Legislation Amendment

(Closing Loopholes) Bill 2023

No. , 2023

(Employment and Workplace Relations)

A Bill for an Act to amend the law relating to

workplace relations, work health and safety,

workers' compensation and rehabilitation,

certain

independent contractors, unfair contracts, the road

transport industry, the Asbestos Safety and

Eradication Agency and registered organisations,

and for related purposes

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Contents

Short title ................................................................................................ 1

Commencement ..................................................................................... 2

Schedules ............................................................................................... 4

Schedule 1

Main amendments

Part 1

Casual employment

Fair Work Act 2009

Part 2

Small business redundancy exemption

Fair Work Act 2009

Part 3

Enabling multiple franchisees to access the

single-enterprise stream

Fair Work Act 2009

Part 4

Transitioning from multi-enterprise agreements

Fair Work Act 2009

Part 5

Model terms

Fair Work Act 2009

Part 6

Closing the labour hire loophole

Fair Work Act 2009

Part 7

--Workplace delegates' rights

Division 1

Amendments commencing day after Royal Assent

Fair Work Act 2009

Division 2

Amendments commencing 1 July 2024

Fair Work Act 2009

Part 8

Strengthening protections against discrimination

Fair Work Act 2009

Part 9

Sham arrangements

Fair Work Act 2009

Part 10

Exemption certificates for suspected underpayment

Fair Work Act 2009

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Part 11

Penalties for civil remedy provisions

Division 1

Penalties

Fair Work Act 2009

Division 2

Contingent amendments

Fair Work Act 2009

Division 3

Underpayments

Fair Work Act 2009

Part 12

Compliance notice measures

Fair Work Act 2009

Part 13

Withdrawal from amalgamations

Fair Work (Registered Organisations) Act 2009

Part 14

Wage theft

Fair Work Act 2009

Federal Court of Australia Act 1976

112

Part 15

Definition of employment

113

Fair Work Act 2009

113

Part 16

Provisions relating to regulated workers

114

Division 1

Overarching road transport matters

114

Fair Work Act 2009

114

Division 2

Expert Panel for the road transport industry

119

Fair Work Act 2009

119

Division 3

Minimum standards for regulated workers

122

Fair Work Act 2009

122

Division 4

Consequential amendments

196

Fair Work Act 2009

196

Division 5

Amendment of the Independent Contractors Act 2006

212

Independent Contractors Act 2006

212

Part 17

Technical amendment

214

Fair Work Act 2009

214

Part 18

Application and transitional provisions

215

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

iii

Fair Work Act 2009

215

Schedule 2

Amendment of the Asbestos Safety and

Eradication Agency Act 2013

231

Part 1

Main amendments

231

Asbestos Safety and Eradication Agency Act 2013

231

Part 2

Application, saving and transitional provisions

244

Schedule 3

Amendment of the Safety, Rehabilitation and

Compensation Act 1988

248

Safety, Rehabilitation and Compensation Act 1988

248

Schedule 4

Amendment of the Work Health and Safety Act

2011

250

Part 1

Industrial manslaughter

250

Work Health and Safety Act 2011

250

Part 2

Category 1 offence

253

Work Health and Safety Act 2011

253

Part 3

Corporate criminal liability

254

Work Health and Safety Act 2011

254

Part 4

Commonwealth criminal liability

259

Work Health and Safety Act 2011

259

Part 5

Criminal liability of public authorities

264

Work Health and Safety Act 2011

264

Part 6

Penalties

265

Division 1

Definitions

265

Work Health and Safety Act 2011

265

Division 2

Categorised monetary penalties for offences

266

Work Health and Safety Act 2011

266

Division 3

Tier A monetary penalties for offences

266

Work Health and Safety Act 2011

266

Division 4

Tier B monetary penalties for offences

267

Work Health and Safety Act 2011

267

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Division 5

Tier C monetary penalties for offences

268

Work Health and Safety Act 2011

268

Division 6

Tier D monetary penalties for offences

268

Work Health and Safety Act 2011

268

Division 7

Tier F monetary penalties for offences

270

Work Health and Safety Act 2011

270

Division 8

Tier H monetary penalties for offences

271

Work Health and Safety Act 2011

271

Division 9

Penalties for WHS civil penalty provisions

271

Work Health and Safety Act 2011

271

Division 10

Penalties prescribed by the regulations

273

Work Health and Safety Act 2011

273

Division 11

Penalty amounts

274

Work Health and Safety Act 2011

274

Part 7

Tied amendments

278

Work Health and Safety Act 2011

278

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

A Bill for an Act to amend the law relating to

workplace relations, work health and safety,

workers' compensation and rehabilitation,

certain

independent contractors, unfair contracts, the road

transport industry, the Asbestos Safety and

Eradication Agency and registered organisations,

and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act is the

Fair Work Legislation Amendment (Closing

Loopholes) Act 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1,

Part 1

1 July 2024.

1 July 2024

3. Schedule 1,

Part 2

The day after this Act receives the Royal

Assent.

4. Schedule 1,

Part 3

The day after this Act receives the Royal

Assent.

5. Schedule 1,

Part 4

The day after this Act receives the Royal

Assent.

6. Schedule 1,

Part 5

A single day to be fixed by Proclamation.

However, if the provisions do not commence

within the period of 12 months beginning on

the day this Act receives the Royal Assent,

they commence on the day after the end of

that period.

7. Schedule 1,

Part 6

The day after this Act receives the Royal

Assent.

8. Schedule 1,

Part 7, Division 1

The day after this Act receives the Royal

Assent.

9. Schedule 1,

Part 7, Division 2

The later of:

(a) 1 July 2024; and

(b) immediately after the commencement of

the provisions covered by table item 8.

10. Schedule 1,

The day after this Act receives the Royal

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

Part 8

Assent.

11. Schedule 1,

Part 9

The day after this Act receives the Royal

Assent.

12. Schedule 1,

Part 10

1 July 2024.

1 July 2024

13. Schedule 1,

Part 11,

Division 1

The later of:

(a) the day after this Act receives the Royal

Assent; and

(b) 1 January 2024.

14. Schedule 1,

Part 11,

Division 2

The later of:

(a) the same time as the provisions covered

by table item 13; and

(b) immediately after the commencement of

Division 2 of Part 28 of Schedule 1 to the

Fair Work Legislation Amendment

(Secure Jobs, Better Pay) Act 2022

However, the provisions do not commence

at all if the event mentioned in paragraph (b)

does not occur.

15. Schedule 1,

Part 11,

Division 3

At the same time as the provisions covered

by table item 18.

16. Schedule 1,

Part 12

The day after this Act receives the Royal

Assent.

17. Schedule 1,

Part 13

The day after this Act receives the Royal

Assent.

18. Schedule 1,

items 213 to 222

A single day to be fixed by Proclamation.

However, if the provisions do not commence

before 1 January 2025, they commence on

that day.

19. Schedule 1,

items 223 and 224

The day after the end of the period of 6

months beginning on the day this Act

receives the Royal Assent.

20. Schedule 1,

items 225 to 236

At the same time as the provisions covered

by table item 18.

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

21. Schedule 1,

Part 15

The day after this Act receives the Royal

Assent.

22. Schedule 1,

Part 16

1 July 2024.

1 July 2024

23. Schedule 1,

Part 17

The day after this Act receives the Royal

Assent.

24. Schedule 1,

Part 18

The day after this Act receives the Royal

Assent.

25. Schedule 2

The day after this Act receives the Royal

Assent.

26. Schedule 3

The 28th day after this Act receives the

Royal Assent.

27. Schedule 4,

Part 1

1 July 2024.

1 July 2024

28. Schedule 4,

Parts 2 to 6

The day after this Act receives the Royal

Assent.

29. Schedule 4,

Part 7

The later of:

(a) at the same time as the provisions

covered by table item 28; and

(b) immediately after the commencement of

the

Work Health and Safety Amendment

Act 2023

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Main amendments

Schedule 1

Casual employment

Part 1

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Schedule

1--Main amendments

Part

1--Casual employment

Fair Work Act 2009

1 Section 15A

Repeal the section, substitute:

15A Meaning of

casual employee

General rule

(1) An employee is a

casual employee

of an employer only if:

(a) the employment relationship is characterised by an absence

of a firm advance commitment to continuing and indefinite

work; and

(b) the employee would be entitled to a casual loading or a

specific rate of pay for casual employees under the terms of a

fair work instrument if the employee were a casual employee,

or the employee is entitled to such a loading or rate of pay

under the contract of employment.

Note:

An employee who commences employment as a casual employee

remains a casual employee until the occurrence of a specified event

(see subsection (5)).

Indicia that apply for purposes of general rule

(2) For the purposes of paragraph (1)(a), whether the employment

relationship is characterised by an absence of a firm advance

commitment to continuing and indefinite work is to be assessed:

(a) on the basis of the real substance, practical reality and true

nature of the employment relationship; and

(b) on the basis that a firm advance commitment can be in the

form of the contract of employment or, irrespective of the

terms of that contract, in the form of a mutual understanding

or expectation between the employer and employee not rising

to the level of a term of that contract (or to a variation of any

such term); and

Schedule 1

Main amendments

Part 1

Casual employment

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

considerations (which indicate the presence, rather than an

absence, of such a commitment):

(i) whether there is an inability of the employer to elect to

offer work or an inability of the employee to elect to

accept or reject work (and whether this occurs in

practice);

(ii)

whether, having regard to the nature of the employer's

enterprise, it is reasonably likely that there will be future

availability of continuing work in that enterprise of the

kind usually performed by the employee;

(iii) whether there are full-time employees or part-time

employees performing the same kind of work in the

employer's

enterprise that is usually performed by the

employee;

(iv) whether there is a regular pattern of work for the

employee.

(3) To avoid doubt:

(a) for the purposes of paragraph (2)(b), a mutual understanding

or expectation may be inferred from conduct of the employer

and employee after entering into the contract of employment

or from how the contract is performed; and

(b) the considerations referred to in paragraph (2)(c) must all be

considered but do not necessarily all need to be satisfied for

an employee to be considered as other than a casual

employee; and

subparagraph (2)(c)(iv) even if it is not absolutely uniform

and includes some fluctuation or variation over time

(including for reasonable absences such as for illness, injury

or recreation).

Exceptions to general rule

(4) Despite subsection (1), an employee is not a

casual employee

of an

employer if:

(a) the contract of employment includes a term that provides the

contract will terminate at the end of an identifiable period

(whether or not the contract also includes other terms that

Main amendments

Schedule 1

Casual employment

Part 1

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

provide for circumstances in which it may be terminated

before the end of that period); and

(b) the period is not identified by reference to a specified season

or the completion of the shift of work to which the contract

relates.

Note:

This means an employee on a fixed term contract for a specified

season or an employee engaged on a shift by shift basis may be a

casual employee if the requirements of subsections (1) to (4) are

otherwise satisfied.

Employees engaged as casual employees remain so until the

occurrence of a specified event

(5) A person who commences employment as a casual employee

within the meaning of subsections (1) to (4) remains a

casual

employee

of the employer until:

(a)

the employee's employment

status is changed or converted to

full-time employment or part-time employment under

Division 4A of Part 2-2; or

(b)

the employee's employment status is changed or converted

by order of the FWC under section 66MA or 739; or

(c)

the employee's employment

status is changed or converted to

full-time employment or part-time employment under the

terms of a fair work instrument that applies to the employee;

(d) the employee accepts an alternative offer of employment

(other than as a casual employee) by the employer and

commences work on that basis.

2 Paragraph 61(2)(ba)

Repeal the paragraph, substitute:

(ba) casual employment (Division 4A);

3 Subsection 65(2A)

Omit "converted under

Division 4A of Part 2-2

", substitute "changed or

converted under Division 4A of Part 2-

4 Division 4A of Part 2-2 (heading)

Repeal the heading, substitute:

Schedule 1

Main amendments

Part 1

Casual employment

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Division

4A--Casual employment

5 After section 66A

Insert:

66AAA Object of this Division

The object of this Division is to establish a framework for dealing

with changes to, or conversion of, casual employment status that:

(a) is quick, flexible and informal; and

(b) addresses the needs of employers and employees; and

choice about employment status.

6 After Subdivision A of Division 4A of Part 2-2

Insert:

Subdivision B

Employee choice about casual employment

66AAB Employee notification

A casual employee may give an employer a written notification

under this section if:

(a) having regard to subsections 15A(1) to (4) and the

employee's current employment relationship with the

employer, the employee

believes that the employee no longer

meets the requirements of those subsections; and

(b) the employee does not have a dispute with the employer

relating to the operation of Division 4A of Part 2-2 being

dealt with under section 66M (including by way of

arbitration under section 66MA) or under section 739; and

(i) is a small business employer at the time the notification

is given

the employee has been employed by the

employer for a period of at least 12 months beginning

the day the employment started; or

(ii) is not a small business employer at the time the

notification is given

the employee has been employed

Main amendments

Schedule 1

Casual employment

Part 1

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

by the employer for a period of at least 6 months

beginning the day the employment started; and

(d) in the period of 6 months before the day the notification is

given, the employee has not:

(i) received a response from the employer under

section 66AAC not accepting a previous notification

made under this section; or

(ii) been given a notice under subsection 66C(3) that the

employer is not required to make an offer to the

employee under section 66B (which deals with

employer offers of casual conversion); or

(iii) declined, under section 66D, an offer made by the

employer under section 66B (which deals with

employer offers of casual conversion); or

(iv) been given a response by the employer under

section 66G refusing a request by the employee under

section 66F (which deals with employee requests for

casual conversion); or

(v) had a dispute with the employer relating to the operation

of Division 4A of Part 2-2 resolved under section 66M

(including by way of arbitration under section 66MA) or

under section 739.

Note:

This section does not prevent

an employee changing to full-time

employment or part-time employment other than under this Division

(see paragraphs 15A(5)(c) and (d)).

66AAC Employer response

Timing of response

(1) An employer must give an employee a written response to a

notification given under section 66AAB within 21 days after the

notification is given to the employer.

Information that must be included in response

(2) The response must be in writing and include the following:

(a) a statement that the employer:

(i) accepts the notification; or

Schedule 1

Main amendments

Part 1

Casual employment

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(ii) does not accept the notification on one or more grounds

referred to in subsection (4); and

(b) if the employer accepts the notification

the following

information:

(i) whether the employee is changing to full-time

employment or part-time employment;

(ii)

the employee's hours of work after the change takes

effect;

(iii)

the day the employee's change to full

-time employment

or part-time employment takes effect;

detailed

reasons for the employer's decision;

(d) if the employer does not accept the notification

a statement

that the employee may:

(i) attempt to resolve the dispute in accordance with

section 66M; and

(ii) if the dispute is not resolved in accordance with that

section

apply to the FWC for the FWC to make an

order under subsection 66MA(1) in relation to the

employee.

Consulting with employee

(3) Before giving a response under subsection (1), the employer must

consult with the employee about the notification and must, if the

employer is accepting the notification, discuss the matters the

employer intends to specify for the purposes of

subparagraphs (2)(b)(i) to (iii).

Grounds for employer to not accept notification

(4) For the purposes of subparagraph (2)(a)(ii), the employer may not

accept the notification on any of the following grounds:

(a) having regard to subsections 15A(1) to (4) and the

employee's current employment relationship with the

employer, the employee still meets the requirements of those

subsections;

(b) accepting the notification would be impractical because

substantial changes to the employee's terms and conditions

would be reasonably necessary to ensure the employer does

Main amendments

Schedule 1

Casual employment

Part 1

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

not contravene a term of a fair work instrument that would

apply to the employee as a full-time employee or part-time

employee (as the case may be);

complying with a recruitment or selection process required

by or under a law of the Commonwealth or a State or a

Territory.

Note:

For the purposes of paragraph (4)(b), substantial changes are changes

that significantly affect the way the employee would need to work.

66AAD Effect of employer acceptance of employee notification

(1) If an employer responds under section 66AAC that the employer

accepts an employee's notification given under section

66AAB, the

employee is taken to be a full-time employee or part-time

employee (as the case may be) beginning on the day specified in

the response.

(2) The day specified in the response for the purposes of subsection (1)

must be the first day of the employee's first full pay period that

starts after the day the employer response is given, unless the

employer and employee agree to another day.

7 Subdivision B of Division 4A of Part 2-2 (heading)

Repeal the heading, substitute:

Subdivision C

Offers and requests for casual conversion

8 Section 66AA

Omit "This Subdivision does", substitute "Sections

66B to 66E do"

9 Subsection 66C(3) (note)

Omit "Subdivision C", substitute "sections

66F to 66J"

10 Subdivision C of Division 4A of Part 2-2 (heading)

Repeal the heading.

11 Subparagraph 66F(1)(c)(i)

Repeal the subparagraph, substitute:

Schedule 1

Main amendments

Part 1

Casual employment

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(ia) the employee has not, at any time during the period

referred to in paragraph (b), given a notification to the

employer under section 66AAB (which deals with

employee choice notifications);

(i) the employee has not, at any time during that period,

refused an offer made to the employee under

section 66B (which deals with offers of casual

conversion);

12 Section 66K

Repeal the section, substitute:

66K Effect of change or conversion

To avoid doubt, an employee is taken, on and after the day

specified in a notice for the purposes of

subparagraph 66AAC(2)(b)(iii) or paragraph 66E(1)(c) or

66J(1)(c), to be a full-time employee or part-time employee of the

employer for the purposes of the following:

(a) this Act and any other law of the Commonwealth;

(b) a law of a State or Territory;

(d)

the employee's contract of employment.

13 Subsection 66L(1)

Repeal the subsection (not including the note), substitute:

(1) An employer must not do any of the following in order to avoid

any right or obligation under this Division:

(a)

reduce or vary an employee's hours of work;

(b)

change the employee's pattern of work;

(c)

terminate an employee's employment

14 Subsection 66L(2)

Repeal the subsection, substitute:

(2) Nothing in this Division:

(a) requires an employee to change or convert to full-time

employment or part-time employment under this Division; or

Main amendments

Schedule 1

Casual employment

Part 1

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

(b) permits an employer to require an employee to change or

convert to full-time employment or part-time employment

under this Division; or

employee who gives a notification to change, or requests

conversion, to full-time employment or part-time

employment under this Division.

15 Section 66M

Repeal the section, substitute:

66M Disputes about the operation of this Division

Application of this section to disputes about employee choice

(1) This section applies to a dispute between an employer and an

employee about the operation of Subdivision B of this Division.

(2) However, the FWC must not deal with the dispute if the FWC is

satisfied that a change to the employee's employment status would

result in the employer not complying with a recruitment or

selection process required by or under a law of the Commonwealth

or a State or a Territory.

Application of this section to disputes about offers and requests for

casual conversion

(3) This section applies to a dispute between an employer and an

employee about the operation of Subdivision C of this Division.

Resolving disputes

(4) In the first instance, the parties to the dispute must attempt to

resolve the dispute at the workplace level, by discussions between

the parties.

Note 1:

Modern awards and enterprise agreements must include a term that

provides a procedure for settling disputes in relation to the National

Employment Standards (see paragraph 146(b) and subsection 186(6)).

Note 2:

Subsection 55(4) permits inclusion of terms that are ancillary or

incidental to, or that supplement, the National Employment Standards.

However, a term of a modern award or an enterprise agreement has no

effect to the extent it contravenes section 55 (see section 56).

Schedule 1

Main amendments

Part 1

Casual employment

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

FWC may deal with disputes

(5) If discussions at the workplace level do not resolve the dispute, a

party to the dispute may refer the dispute to the FWC.

(6) If a dispute is referred under subsection (5):

(a) the FWC must first deal with the dispute by means other than

arbitration, unless there are exceptional circumstances; and

(b) the FWC may deal with the dispute by arbitration in

accordance with section 66MA.

Note:

For the purposes of paragraph (a), the FWC may deal with the dispute

as it considers appropriate, including by mediation, conciliation,

making a recommendation or expressing an opinion (see

subsection 595(2)).

Changing streams

(7) The FWC may deal with a dispute about the operation of

Subdivision B of this Division that has been referred to the FWC

under subsection (5) as if the dispute were instead one about the

operation of Subdivision C of this Division if:

(a) paragraph 66F(1)(c) would not otherwise prevent the

employee making a request under section 66F; and

(b) the employee agrees to the dispute being dealt with as one

about the operation of Subdivision C of this Division; and

(8) The FWC may deal with a dispute about the operation of

Subdivision C of this Division that has been referred to the FWC

under subsection (5) as if the dispute were instead one about the

operation of Subdivision B of this Division if:

(a) the employee would not otherwise be prevented from giving

the employer a notification under section 66AAB because of

the operation of paragraph 66AAB(c) or (d); and

(b) subsection 66M(2) would not otherwise prevent the FWC

dealing with the dispute; and

about the operation of Subdivision B of this Division; and

(d) the FWC considers it appropriate to do so.

Main amendments

Schedule 1

Casual employment

Part 1

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

(9) If the FWC changes, under subsection (7) or (8), the Subdivision of

this Division the dispute is taken to have arisen in relation to, the

FWC may, for the purposes of dealing with that dispute:

(a) deem any actions by the parties under this Division that

would otherwise have been required for the FWC to deal

with the dispute to have occurred; and

(b) invite submissions from the parties about whether:

(i) for a dispute taken to relate to Subdivision B of this

Division

one or more grounds referred to in

subsection 66AAC(4) exist; or

(ii) for a dispute taken to relate to Subdivision C of this

Division

any reasonable grounds referred to in

paragraph 66H(1)(b) exist.

Representatives

(10) The employer or employee may appoint a person, or an employer

organisation or employee organisation, that is entitled to represent

the industrial interests of the employer or employee to provide the

employer or employee (as the case may be) with support or

representation for the purposes of:

(a) resolving the dispute; or

(b) the FWC dealing with the dispute.

Note:

A person may be represented by a lawyer or paid agent in a matter

before the FWC only with the permission of the FWC (see

section 596).

Procedural rules

(11) Without limiting section 609, the procedural rules may provide, in

relation to a dispute between an employer and employee that has

been referred to the FWC under subsection (5) of this section:

(a) for the joinder of the following as parties to the dispute:

(i) any other employee that has a dispute to which this

section applies with the same employer;

(ii) any employee organisation that is entitled to represent

the industrial interests of such an employee; and

(b) for processes to support the operation of subsections (7) to

(9).

Schedule 1

Main amendments

Part 1

Casual employment

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

66MA Arbitration

FWC may make any orders it considers appropriate

(1) For the purposes of paragraph 66M(6)(b), the FWC may deal with

the dispute by arbitration, including by making any orders it

considers appropriate, including (but not limited to) the following:

(a) for a dispute about the operation of Subdivision B of this

Division (which deals with employee choice about casual

employment)

any order referred to in subsection (4);

(b) for a dispute about the operation of Subdivision C of this

Division (which deals with casual conversion)

any order

referred to in subsection (7).

(2) However, the FWC must not make an order under this section

unless the FWC considers that it would be fair and reasonable to

make the order.

Note:

The FWC must also take into account the object of this Act and the

object of this Division (see paragraph 578(a)).

(3) The FWC must not make an order under subsection (1) that would

be inconsistent with:

(a) a provision of this Act; or

(b) a term of a fair work instrument (other than an order made

under that subsection) that, immediately before the order is

made, applies to the employer and employee.

Orders relating to employee choice

(4) For the purposes of paragraph (1)(a), the orders are the following:

(a) that the employee continue to be treated as a casual

employee;

(b) that the employee be treated as a full-time employee or

part-time employee (as the case may be) from the first day of

the employee's first full pay period that starts after the day

the order is made, or such later day that the FWC considers

appropriate.

(5) In considering whether to make, and the terms of, an order under

subsection (1) (including an order referred to in subsection (4)) in

relation to a dispute about the operation of Subdivision B of this

Main amendments

Schedule 1

Casual employment

Part 1

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Division (which deals with employee choice about casual

employment), the FWC must:

(a) have regard to whether subst

antial changes to the employee's

terms and conditions would be reasonably necessary to

ensure the employer does not contravene a term of a fair

work instrument that would apply to the employee as a

full-time employee or part-time employee; and

(b) disregard conduct of the employer and employee that

occurred after the employee gave the notification under

section 66AAB (which deals with employee choice

notifications) to the employer.

Orders relating to offers and requests for casual conversion

(7) For the purposes of paragraph (1)(b), the orders are the following:

(a) if the employer has not made an offer under section 66B

(which deals with employer offers of casual conversion) to

the employee

an order that the employer make an offer of

casual conversion under that section;

(b) if the employer has refused a request made under section 66F

(which deals with employee requests for casual conversion)

by the employee or has not responded to that request under

section 66G within 21 days after the request was given

order that the employer grant the request under section 66J.

Note:

Circumstances in which an employer has, for the purposes of

paragraph (a), not made an offer under section 66B include where an

employer has given the employee a notice under section 66C.

Contravening an order under subsection (1)

(8) A person must not contravene a term of an order made under

subsection (1).

Note:

This subsection is a civil remedy provision (see Part 4-1).

16 Subsection 67(1A)

Omit "converted under

Division 4A of Part 2-

2", substitute "changed or

converted under Division 4A of Part 2-

Schedule 1

Main amendments

Part 1

Casual employment

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

17 Subsection 125A(2)

Omit "and offers and requests for casual conversion", substitute "and

how this can be changed or converted"

18 After paragraph 125A(2)(a)

Insert:

(aa) an employee who has completed 6 months of employment

(12 months if a small business employer) can notify the

employer if, having regard to the employee's current

employment relationship with the employer, the employee

believes that the employee no longer meets the requirements

of subsections 15A(1) to (4);

(ab) the grounds upon which an employer may not accept a

notification given by an employee;

19 Subsection 125B(1)

Repeal the subsection, substitute:

(1) An employer must give each casual employee the Casual

Employment Information Statement:

(a) before, or as soon as practicable after, the employee starts

employment as a casual employee with the employer; and

(b) as soon as practicable after the employee has been employed

by the employer for a period of 12 months beginning the day

the employment started.

20 Before section 357

Insert:

Subdivision A

Independent contracting

21 At the end of Division 6 of Part 3-1

Add:

Main amendments

Schedule 1

Casual employment

Part 1

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Subdivision B

Casual employment

359A Misrepresenting employment as casual employment

(1) A person (the

employer

) that employs, or proposes to employ, an

individual must not represent to the individual that the contract of

employment under which the individual is, or would be, employed

by the employer is a contract for casual employment under which

the individual performs, or would perform, work other than as a

casual employee.

Note:

This subsection is a civil remedy provision (see Part 4-1).

(2) Subsection (1) does not apply if the employer proves that, when the

representation was made, the employer reasonably believed that

the contract was a contract for employment as a casual employee.

(3) In determining, for the purpose of subsection (2), whether the

employer's belief was reasonable:

(a) regard must be had to the size and nature of the employe

r's

enterprise; and

(b) regard may be had to any other relevant matters.

359B Dismissing to engage as casual employee

An employer must not dismiss, or threaten to dismiss, an individual

who:

(a) is an employee of the employer; and

(b) performs particular work for the employer;

in order to engage the individual as a casual employee to perform

the same, or substantially the same, work.

Note:

This section is a civil remedy provision (see Part 4-1).

359C Misrepresentation to engage as casual employee

A person (the

employer

) that employs, or has at any time

employed, an individual to perform particular work other than as a

casual employee must not make a statement that:

(a) the employer knows is false; and

(b) is made in order to persuade or influence the individual to

enter into a contract for casual employment under which the

Schedule 1

Main amendments

Part 1

Casual employment

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

individual will perform the same, or substantially the same,

work for the employer.

Note:

This section is a civil remedy provision (see Part 4-1).

22 Subsection 539(2) (after table item 5AA)

Insert:

5AAA

66MA(8)

(a) an employee;

(b) an employee

organisation;

(a) the Federal

Court;

(b) the Federal

Circuit and

Family Court

of Australia

(Division 2);

State or

Territory court

300 penalty

units

23 Subsection 539(2) (before table item 12)

Insert:

11B

359A(1)

359B

359C

(a) a person affected

by the

contravention;

(b) an industrial

association;

(a) the Federal

Court;

(b) the Federal

Circuit and

Family Court

of Australia

(Division 2)

300 penalty

units

24 After subsection 548(1B)

Insert:

(1C) Proceedings are also to be dealt with as small claims proceedings

under this section if:

(a) a person applies for an order (other than a pecuniary penalty

order) under Division 2 from a magistrates court or the

Federal Circuit and Family Court of Australia (Division 2) in

connection with a dispute; and

(b) the dispute relates to whether a person was a casual employee

of an employer when the person commenced employment

with that employer; and

Main amendments

Schedule 1

Casual employment

Part 1

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

prescribed by the regulations or by the rules of the court, that

the person wants the small claims procedure to apply to the

proceedings.

Note:

Orders that a court may make under Division 2 in relation to small

claims proceedings under this subsection may include a declaration

that the employee was a casual employee, a part-time employee or a

full-time employee when the employee commenced employment with

the employer.

25 After paragraph 675(2)(ab)

Insert:

(ac) an order under subsection 66MA(1) (which deals with casual

employment);

Schedule 1

Main amendments

Part 2

Small business redundancy exemption

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Part

2--Small business redundancy exemption

Fair Work Act 2009

26 Section 12 (definition of

appointment

)

Repeal the definition, substitute:

appointment

(a) of a bargaining representative means an appointment of a

bargaining representative under paragraph 176(1)(c) or (d) or

177(c); and

(b) of an insolvency practitioner includes a person becoming an

insolvency practitioner:

(i) by taking possession or control of property; or

(ii) by operation of law.

27 Section 12

Insert:

Bankruptcy Act 1966

: a reference to the

Bankruptcy Act 1966

or a

provision of that Act is a reference to that Act or provision:

(a) applying of its own force; or

(b) applying, with or without modifications, because of a law of

the Commonwealth, a State or a Territory.

bankruptcy trustee

of a person means the trustee under the

Bankruptcy Act 1966

of the person's estate in bankruptcy

Corporations Act 2001

: the reference to the

Corporations Act 2001

in the definitions of

insolvency practitioner

and

liquidator

in this

section is a reference to that Act:

(a) applying of its own force; or

(b) applying, with or without modifications, because of a law of

the Commonwealth, a State or a Territory.

insolvency practitioner

for an employer means:

(a) a liquidator of the employer; or

Main amendments

Schedule 1

Small business redundancy exemption

Part 2

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

(b) an administrator of the employer appointed under the

Corporations Act 2001

; or

that Act; or

(d) a person appointed as a receiver of property of the employer;

(e) a person who has possession or control of property of the

employer for the purpose of enforcing:

(i) a charge; or

(ii) a mortgage; or

(iii) a lien; or

(iv) a pledge; or

(v) a security interest, within the meaning of the

Personal

Property Securities Act 2009

, to which that Act applies,

other than a transitional security interest within the

meaning of that Act; or

(f) a bankruptcy trustee of the employer.

liquidator

means a liquidator appointed (provisionally or

otherwise) under the

Corporations Act 2001

members' voluntary winding up

: see subsection 121(5).

28 At the end of section 121

Certain small businesses to pay redundancy pay

(4) Despite subsection (1), an employee whose employment is

terminated is entitled to be paid redundancy pay in accordance with

this Division if:

(a) at the time of the termination, section 119 did not apply to

the termination because the employer was a small business

employer; and

(b) the employer is bankrupt or in liquidation (other than only

because of a members' voluntary winding up); and

employment of one or more employees was terminated; and

(d) those terminations occurred:

Schedule 1

Main amendments

Part 2

Small business redundancy exemption

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(i) on or after the day that is 6 months before the employer

became bankrupt or went into liquidation; or

(ii) if there was an insolvency practitioner (the

last

insolvency practitioner

) for the employer on the

business day before the employer became bankrupt or

went into liquidation

on or after the day that is 6

months before the insolvency practitioner was

appointed; or

(iii) if, before the last insolvency practitioner was appointed,

other insolvency practitioners for the employer were

appointed without any intervening business days

between any of those appointments

on or after the day

that is 6 months before the first of those insolvency

practitioners was appointed; or

(iv) due to the insolvency of the employer.

(5) A

members' voluntary winding up

is a winding up under

section 495 of the

Corporations Act 2001

Time of liquidation

--members' voluntary winding up where

company turns out to be insolvent

(6) If a liquidator takes action under section 496 of the

Corporations

Act 2001

(company turns out to be insolvent) in relation to a small

business employer whose liquidation began as a members'

voluntary winding up, then, for the purposes of

subparagraph (4)(d)(i), the time the employer goes into liquidation

is the time the employer goes into liquidation because of the

members' voluntary

winding up.

Application to partnerships

(7) For the purposes of subsection (4), a small business employer that

is a partnership is not bankrupt or in liquidation unless each partner

of the partnership is bankrupt or in liquidation, as the case requires.

Main amendments

Schedule 1

Enabling multiple franchisees to access the single-enterprise stream

Part 3

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Part

3--Enabling multiple franchisees to access the

single

enterprise stream

Fair Work Act 2009

29 Subsection 172(3)

After "related employers", insert ", or that are all related employers

mentioned in subsection (

3A),"

30 After subsection 172(3)

Insert:

(3A) Two or more employers that are all related employers under

paragraph (5A)(c) (whether or not those employers are also related

employers under another paragraph of subsection (5A)) may make

a multi-enterprise agreement under subsection (3).

31 At the end of subsection 172(5A)

Add:

; or (c) the employers carry on similar business activities under the

same franchise and are:

(i) franchisees of the same franchisor; or

(ii) related bodies corporate of the same franchisor; or

(iii) any combination of the above.

Schedule 1

Main amendments

Part 4

Transitioning from multi-enterprise agreements

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Part

4--Transitioning from multi

enterprise

agreements

Fair Work Act 2009

32 Section 12 (definition of

voting request order

)

Omit "and (2)", substitute ", (2) and (4)"

33 Paragraph 58(2)(c)

Repeal the paragraph, substitute:

34 At the end of section 58

Add:

Special rule

single-enterprise agreement replaces single interest

employer agreement

(4) If:

(a) a single interest employer agreement applies to an employee

in relation to particular employment; and

(b) a single-enterprise agreement that covers the employee in

relation to the same employment comes into operation;

the single interest employer agreement ceases to apply to the

employee when the single-enterprise agreement comes into

operation, and can never so apply again.

Special rule

single-enterprise agreement replaces supported

bargaining agreement

(5) If:

(a) a supported bargaining agreement applies to an employee in

relation to particular employment; and

(b) a single-enterprise agreement that covers the employee in

relation to the same employment comes into operation;

Main amendments

Schedule 1

Transitioning from multi-enterprise agreements

Part 4

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

the supported bargaining agreement ceases to apply to the

employee when the single-enterprise agreement comes into

operation, and can never so apply again.

35 At the end of paragraph 173(2)(d)

Add "or"

36 Section 180A (at the end of the heading)

Add "

proposed multi-enterprise agreements

37 After section 180A

Insert:

180B Agreement of bargaining representatives that are employee

organisations

certain proposed single-enterprise

agreements

(1) This section applies to a proposed single-enterprise agreement (the

new agreement

) if:

(a) a single interest employer agreement or a supported

bargaining agreement (each of which is an

old agreement

)

applies to an employee in relation to particular employment;

and

(b) the old agreement has not passed its nominal expiry date; and

agreement will cease to apply to the employee in relation to

that employment.

(2) An employer must not request under subsection 181(1) that

employees approve the new agreement by voting for it unless:

(a) each employee organisation to which the old agreement

applies has provided the employer with written agreement to

the making of the request; or

(b) a voting request order permits the employer to make the

request.

Note:

Voting request orders can be made where failure to provide written

agreement to the making of a request is unreasonable in the

circumstances (see section 240B).

Schedule 1

Main amendments

Part 4

Transitioning from multi-enterprise agreements

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

38 Subsection 188(2A)

After "to which

section 1

80A", insert "or 180B"

39 Subsection 188(2A)

After "with

section 1

80A", insert "or 180B (as the case requires)"

40 Paragraph 188(5)(ab)

Omit "(which deals", substitute "or 180B (which deal"

41 After paragraph 191A(3)(b)

Insert:

(ba) if the agreement is a single-enterprise agreement that covers

one or more employees to whom a supported bargaining

agreement or a single interest employer agreement applies

those employees;

42 Subsection 193(1)

Repeal the subsection, substitute:

When a non-greenfields agreement passes the better off overall test

(1) An enterprise agreement that is not a greenfields agreement

passes

the better off overall test

under this section if the FWC is satisfied,

as at the test time, that:

(a) each award covered employee, and each reasonably

foreseeable employee, for the agreement would be better off

overall if the agreement applied to the employee than if the

relevant modern award applied to the employee; and

(b) if the agreement is a single-enterprise agreement that covers

one or more employees (each of whom is an

old agreement

employee

) to whom a supported bargaining agreement or a

single interest employer agreement applies

each old

agreement employee would be better off overall if the

single-enterprise agreement applied to the employee than if

the supported bargaining agreement or single interest

employer agreement (as the case requires) applied to the

employee.

Note 1:

Reasonably foreseeable employee

is defined in subsection (5).

Main amendments

Schedule 1

Transitioning from multi-enterprise agreements

Part 4

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Note 2:

Section 193A sets out rules for applying the better off overall test,

including requiring the FWC to only have regard to patterns or kinds

of work, or types of employment, that are reasonably foreseeable at

the test time (see subsection 193A(6)).

(1A) If an employee is, at the test time, both an old agreement employee

and an award covered employee, the FWC must undertake an

assessment against only paragraph (1)(b) for that employee.

43 After subsection 193(2)

Insert:

(2A) If, under the flexibility term in the supported bargaining agreement

or single interest employer agreement, an individual flexibility

arrangement has been agreed to by an old agreement employee and

his or her employer, the FWC must disregard the individual

flexibility arrangement for the purposes of determining whether the

single-enterprise agreement passes the better off overall test.

44 Paragraphs 193A(2)(a) and (b)

After "modern award", insert ", supported bargaining agreement or

single interest employer agreement (as the case requires)"

45 Paragraph 193A(3)(b)

Repeal the paragraph, substitute:

(b) if the agreement is not a greenfields agreement:

(i) the award covered employees for the agreement; and

(ii) if the agreement is a single-enterprise agreement that

covers one or more employees to whom a supported

bargaining agreement or a single interest employer

agreement applies

those employees;

46 At the end of subsection 193A(4)

Add:

; (c) if the agreement is a single-enterprise agreement that covers

one or more employees to whom a supported bargaining

agreement or a single interest employer agreement applies

the bargaining representative or bargaining representatives of

those employees (other than a bargaining representative that

is not an employee organisation).

Schedule 1

Main amendments

Part 4

Transitioning from multi-enterprise agreements

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

47 Paragraph 193A(6A)(b)

Repeal the paragraph, substitute:

(b) if the agreement is not a greenfields agreement:

(i) the award covered employees for the agreement; and

(ii) if the agreement is a single-enterprise agreement that

covers one or more employees to whom a supported

bargaining agreement or a single interest employer

agreement applies

those employees;

48 Subsection 193A(7)

After "modern award", insert ", supported bargaining agreement or

single interest employer agreement (as the case requires)"

49 After paragraph 211(4A)(ac)

Insert:

(ad) paragraph (4)(c) were omitted; and

50 Paragraph 227A(2)(a)

Repeal the paragraph, substitute:

(a) before approving the agreement the FWC had regard, under

subsection 193A(6), to patterns or kinds of work, or types of

employment engaged in, or to be engaged in, by:

(i) the award covered employees for the agreement; and

(ii) if the agreement is a single-enterprise agreement that

covers one or more employees to whom a supported

bargaining agreement or a single interest employer

agreement applies

those employees; and

51 Paragraph 227A(2)(b)

After "

subsection (

4)", insert "or (5)"

52 At the end of section 227A

Add:

(5) An employee is covered by this subsection if, on the assumption

that the test time mentioned in section 193 were the time the

application is made under subsection (1) of this section, the

Main amendments

Schedule 1

Transitioning from multi-enterprise agreements

Part 4

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

employee would be an employee referred to in

subparagraph (2)(a)(ii).

53 After paragraph 227B(2)(a)

Insert:

(aa) in the case of an agreement of a kind covered by

paragraph 193(1)(b)

the condition that a supported

bargaining agreement or a single interest employer agreement

applies to the employees is satisfied in relation to an

employee covered by subsection 227A(5); and

54 After paragraph 227B(2)(f)

Insert:

(fa) paragraph 193A(4)(c) were omitted; and

55 After subsection 236(1A)

Insert:

(1B) Despite subsection (1), a bargaining representative of an employee

may not apply to the FWC for a determination if:

(a) a single interest employer agreement or a supported

bargaining agreement applies to the employee; and

(b) the agreement has not passed its nominal expiry date.

56 After subsection 238(1)

Insert:

(2) Despite subsection (1), a bargaining representative may not apply

to the FWC for a scope order in relation to a proposed

single-enterprise agreement if:

(a) a single interest employer agreement or a supported

bargaining agreement applies to one or more employees who

will be covered by the proposed single-enterprise agreement;

and

(b) the single interest employer agreement or supported

bargaining agreement has not passed its nominal expiry date.

57 At the end of section 240A

Add:

Schedule 1

Main amendments

Part 4

Transitioning from multi-enterprise agreements

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Certain proposed single-enterprise agreements

(4) A bargaining representative for a proposed single-enterprise

agreement (the

new agreement

) may apply to the FWC for an

order (also a

voting request order

) permitting an employer to make

a request under subsection 181(1) that employees approve the new

agreement by voting for it if all of the following apply:

(a) a single interest employer agreement or a supported

bargaining agreement (each of which is an

old agreement

)

applies to one or more employees who will be covered by the

new agreement;

(b) the old agreement has not passed its nominal expiry date;

agreement will cease to apply to the employees;

(d) it is after the notification time for the new agreement;

(e) each employee organisation to which the old agreement

applies has been asked to provide the employer with written

agreement to the making of the request;

(f) one or more of the employee organisations has failed to

provide the written agreement.

58 Section 240B

Omit "or (2)", substitute ", (2) or (4)"

59 Section 245

Before "The", insert "(1)"

60 At the end of section 245

Add:

(2) The FWC is taken to have varied a supported bargaining

authorisation to remove an employee when the employee is

covered by an enterprise agreement, or a workplace

determination, that is in operation.

Main amendments

Schedule 1

Model terms

Part 5

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Part

5--Model terms

Fair Work Act 2009

61 Subsection 202(5)

Repeal the subsection, substitute:

(5) The FWC must determine the

model flexibility term

for enterprise

agreements.

(6) In determining the model flexibility term, the FWC must:

(a) ensure that the model term is consistent with the

requirements set out in subsection (1); and

(b) take into account the following matters:

(i) whether the model term is broadly consistent with

comparable terms in modern awards;

(ii) best practice workplace relations as determined by the

FWC;

(iii) whether all persons and bodies have had a reasonable

opportunity to be heard and make submissions to the

FWC for consideration in determining the model term;

(iv) the object of this Act (see section 3), and the objects of

this Part (see section 171);

(v) any other matters the FWC considers relevant.

Note 1:

The FWC must be constituted by a Full Bench to make the model

flexibility term (see subsection 616(4A)).

Note 2:

For the variation of a determination, see subsection 33(3) of the

Acts

Interpretation Act 1901

(7) A determination under subsection (5) is a legislative instrument,

but section 42 (disallowance) of the

Legislation Act 2003

does not

apply to the determination.

62 Subsection 205(3)

Repeal the subsection, substitute:

(3) The FWC must determine the

model consultation term

for

enterprise agreements.

Schedule 1

Main amendments

Part 5

Model terms

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(4) In determining the model consultation term, the FWC must:

(a) ensure that the model term is consistent with the

requirements set out in subsections (1) and (1A); and

(b) take into account the following matters:

(i) whether the model term is broadly consistent with

comparable terms in modern awards;

(ii) best practice workplace relations as determined by the

FWC;

(iii) whether all persons and bodies have had a reasonable

opportunity to be heard and make submissions to the

FWC for consideration in determining the model term;

(iv) whether the model term would, or would be likely to

have, the effect referred to in paragraph 195A(1)(a), (b),

(v) the object of this Act (see section 3), and the objects of

this Part (see section 171);

(vi) any other matters the FWC considers relevant.

Note 1:

The FWC must be constituted by a Full Bench to make the model

consultation term (see subsection 616(4A)).

Note 2:

For the variation of a determination, see subsection 33(3) of the

Acts

Interpretation Act 1901

(5) To avoid doubt, subsections (1) and (1A) do not limit the matters

the model consultation term may deal with.

(6) A determination under subsection (3) is a legislative instrument,

but section 42 (disallowance) of the

Legislation Act 2003

does not

apply to the determination.

63 After subsection 616(4)

Insert:

Model term determinations

(4A) A determination of any of the following model terms must be made

by a Full Bench:

(a) a model flexibility term for enterprise agreements, under

subsection 202(5);

(b) a model consultation term for enterprise agreements, under

subsection 205(3);

Main amendments

Schedule 1

Model terms

Part 5

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

disputes, under subsection 737(1);

(d) a model term for copied State instruments about dealing with

disputes, under subsection 768BK(1A).

64 Section 737

Repeal the section, substitute:

737 Model term about dealing with disputes

(1) The FWC must determine a model term for dealing with disputes

for enterprise agreements.

(2) In determining the model term, the FWC must:

(a) ensure that the model term is consistent with the

requirements set out in subsection 186(6); and

(b) take into account the following matters:

(i) whether the model term is broadly consistent with

comparable terms in modern awards;

(ii) best practice workplace relations as determined by the

FWC;

(iii) whether all persons and bodies have had a reasonable

opportunity to be heard and make submissions to the

FWC for consideration in determining the model term;

(iv) the operation of subsections 739(3), (4), (5) and (6) and

740(3) and (4);

(v) the object of this Act (see section 3);

(vi) any other matters the FWC considers relevant.

Note 1:

The FWC must be constituted by a Full Bench to make the model

term dealing with disputes (see subsection 616(4A)).

Note 2:

For the variation of a determination, see subsection 33(3) of the

Acts

Interpretation Act 1901

(3) A determination under subsection (1) is a legislative instrument,

but section 42 (disallowance) of the

Legislation Act 2003

does not

apply to the determination.

65 Section 768BK (after the heading)

Insert:

Schedule 1

Main amendments

Part 5

Model terms

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Model term required

66 Subsection 768BK(1)

Omit "prescribed by the regulations", substitute "determined u

nder

subsection (

1A)"

67 After subsection 768BK(1)

Insert:

Model term determined by FWC

(1A) The FWC must determine a model term for the purposes of

subsection (1).

68 Subsection 768BK(2)

Omit "

subsection (

1), the model term prescribed", substitute

subsection (

1A), the model term determined"

69 Subsection 768BK(2)

Omit "prescribed" (last occurring), substitute "determined"

70 At the end of section 768BK

Add:

(3) In determining the model term, the FWC must take into account

the following matters:

(a) whether the model term is broadly consistent with

comparable terms in modern awards;

(b) best practice workplace relations as determined by the FWC;

opportunity to be heard and make submissions to the FWC

for consideration in determining the model term;

(d) the operation of subsections 739(3), (4), (5) and (6) and

740(3) and (4);

(e) the object of this Act (see section 3);

(f) any other matters the FWC considers relevant.

Note 1:

The FWC must be constituted by a Full Bench to make the model

term for settling disputes (see subsection 616(4A)).

Main amendments

Schedule 1

Model terms

Part 5

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Note 2:

For the variation of a determination, see subsection 33(3) of the

Acts

Interpretation Act 1901

(4) A determination under subsection (1A) is a legislative instrument,

but section 42 (disallowance) of the

Legislation Act 2003

does not

apply to the determination.

Schedule 1

Main amendments

Part 6

Closing the labour hire loophole

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Part

6--Closing the labour hire loophole

Fair Work Act 2009

71 After paragraph 5(8)(a)

Insert:

(aa) provided by Part 2-7A (which deals with regulated labour

hire arrangement orders); and

72 Section 12

Insert:

alternative protected rate of pay order

: see subsection 306M(2).

arbitrated protected rate of pay order

: see subsection 306Q(1).

covered employment instrument

means:

(a) an enterprise agreement; or

(b) a workplace determination; or

Public Service Act

1999

that applies to a class of APS employees in an Agency

(within the meaning of that Act); or

(d) an instrument made under any other law of the

Commonwealth (other than this Act), or of a State or a

Territory, that provides for the terms and conditions of

employment for a class of national system employees of:

(i) the Commonwealth or a State or Territory; or

(ii) an authority of the Commonwealth or of a State or

Territory; or

(e) any other instrument relating to the employment of a class of

national system employees that:

(i) is made under a law of the Commonwealth (other than

this Act) or a State or Territory; and

(ii) is prescribed by the regulations.

host employment instrument

: see subsection 306E(6).

protected rate of pay

: see section 306F.

Main amendments

Schedule 1

Closing the labour hire loophole

Part 6

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

recurring extended exemption period

: see subsection 306K(2).

regulated employee

: see subsection 306E(5).

regulated host

: see section 306C.

regulated labour hire arrangement order

: see subsection 306E(1).

73 After Part 2-7

Insert:

Part

7A--Regulated labour hire arrangement

orders

Division

1--Introduction

306A Guide to this Part

This Part is about regulated labour hire arrangement orders.

Division 2 deals with the making of regulated labour hire

arrangement orders by the FWC and sets out the obligations of

employers and regulated hosts covered by those orders.

Division 2 also deals with the making of alternative protected rate

of pay orders by the FWC.

Division 3 deals with disputes about the operation of this Part.

Division 4 is about anti-avoidance.

Division 5 requires the FWC to make written guidelines in relation

to the operation of this Part.

306B Meanings of

employee

and

employer

In this Part,

employee

means a national system employee, and

employer

means a national system employer.

Schedule 1

Main amendments

Part 6

Closing the labour hire loophole

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

306C Meaning of

regulated host

is:

(a) a constitutional corporation; or

(b) the Commonwealth; or

(d) a person, so far as work is performed for the person in

connection with constitutional trade or commerce, and the

work is of a kind that would ordinarily be performed by:

(i) a flight crew officer; or

(ii) a maritime employee; or

(iii) a waterside worker; or

(e) a body corporate incorporated in a Territory;

(f) a person who carries on an activity (whether of a commercial,

governmental or other nature) in a Territory in Australia, so

far as work is performed for the person in connection with

the activity carried on in the Territory; or

(g) a person, so far as work is performed for the person in a

Territory in Australia; or

(h) any person in a State that is a referring State because of

Division 2A or 2B of Part 1-3.

Note:

In this context,

Australia

includes Norfolk Island, the Territory of

Christmas Island and the Territory of Cocos (Keeling) Islands (see the

definition of

Australia

in section 12).

306D References to kinds of work and work performed for a person

etc.

(1) A reference in this Part to work of a kind includes a reference to

work that is substantially of that kind.

(2) A reference in this Part to work performed for a person includes a

reference to work performed wholly or principally for the benefit

of the person or an enterprise carried on by the person.

(3) To avoid doubt, in determining for the purposes of this Part

whether work is or is to be performed for a person by an employee

Main amendments

Schedule 1

Closing the labour hire loophole

Part 6

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

of an employer, it does not matter whether there is or will be any

agreement between the person and the employer relating to the

performance of the work.

Division

2--Regulated labour hire arrangement orders

Subdivision A

Making regulated labour hire arrangement

orders

306E FWC may make a regulated labour hire arrangement order

Regulated labour hire arrangement order

(1) The FWC must, on application by a person mentioned in

subsection (7), make an order (a

regulated labour hire

arrangement order

) if the FWC is satisfied that:

(a) an employer supplies or will supply, either directly or

indirectly, one or more employees of the employer to a

regulated host to perform work for the regulated host; and

(b) a covered employment instrument that applies to the

regulated host would apply to the employees if the regulated

host were to employ the employees to perform work of that

kind; and

Note:

The FWC may make other decisions under this Part which relate to

regulated labour hire arrangement orders: see Subdivisions C

(short-term arrangements) and D (alternative protected rate of pay

orders) of this Division, and Division 3 (dealing with disputes).

(2) Despite subsection (1), the FWC must not make the order if the

FWC is satisfied that it is not fair and reasonable in all the

circumstances to do so, having regard to any matters in

subsection (8) in relation to which submissions have been made.

(3) For the purposes of paragraph (1)(a), it does not matter:

(a) whether the supply is the result of an agreement, or one or

more agreements; or

(b) if there are one or more agreements relating to the supply

whether an agreement is between:

(i) the regulated host and the employer; or

Schedule 1

Main amendments

Part 6

Closing the labour hire loophole

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(ii) the regulated host and a person other than the employer;

(iii) the employer and a person other than the regulated host;

(iv) any 2 persons who are neither the regulated host nor the

employer; or

corporate.

Note:

If related bodies corporate with different corporate branding do not

provide labour to each other, a regulated labour hire arrangement

order cannot be made because labour is not supplied in the way

mentioned in paragraph (1)(a).

(4) For the purposes of paragraph (1)(b), in determining whether a

covered employment instrument would apply to the employees, it

does not matter on what basis the employees are or would be

employed.

Regulated employee and host employment instrument

(5) An employee referred to in paragraph (1)(a) is a

regulated

employee

(6) The covered employment instrument referred to in paragraph (1)(b)

is a

host employment instrument

Who may apply for an order

(7) The following persons may apply for the order:

(a) a regulated employee;

(b) an employee of the regulated host;

industrial interests of an employee mentioned in

paragraph (a) or (b);

(d) the regulated host.

Matters to be considered if submissions are made

(8) The matters are as follows:

Main amendments

Schedule 1

Closing the labour hire loophole

Part 6

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

(a) the pay arrangements that apply to employees of the

regulated host (or related bodies corporate of the regulated

host) and the regulated employees, including in relation to:

(i) whether the host employment instrument applies only to

a particular class or group of employees; and

(ii) whether, in practice, the host employment instrument

has ever applied to an employee at a classification, job

level or grade that would be applicable to the regulated

employees; and

(iii) the rate of pay that would be payable to the regulated

employees if the order were made;

(b) whether the performance of the work is or will be wholly or

principally for the provision of a service, rather than the

supply of labour, to the regulated host, having regard to:

(i) the involvement of the employer in matters relating to

the performance of the work; and

(ii) the extent to which, in practice, the employer or a

person acting on behalf of the employer directs,

supervises or controls (or will direct, supervise or

control) the regulated employees when they perform the

work, including by managing rosters, assigning tasks or

reviewing the quality of the work; and

(iii) the extent to which the regulated employees use or will

use systems, plant or structures of the employer to

perform the work; and

(iv) the extent to which either the employer or another

person is or will be subject to industry or professional

standards or responsibilities in relation to the regulated

employees; and

(v) the extent to which the work is of a specialist or expert

nature; and

(vi) the extent to which, in the circumstances, the regulated

host employs, has previously employed or could employ

employees to whom the host employment instrument

applies, applied or would apply;

regulated host and the employer;

Schedule 1

Main amendments

Part 6

Closing the labour hire loophole

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(d) the relationship between the regulated host and the employer,

including whether they are related bodies corporate or

engaged in a joint venture or common enterprise;

(e) the terms and nature of the arrangement under which the

work will be performed, including:

(i) the period for which the arrangement operates or will

operate; and

(ii) the location of the work being performed or to be

performed under the arrangement; and

(iii) the industry in which the regulated host and the

employer operate; and

(iv) the number of employees of the employer performing

work, or who are to perform work, for the regulated host

under the arrangement;

(f) any other matter the FWC considers relevant.

What an order must specify

(9) A regulated labour hire arrangement order must specify:

(a) the regulated host covered by the order; and

(b) the employer covered by the order; and

(d) the host employment instrument covered by the order; and

(e) the day the order comes into force, which must be:

(i) if the order is made before 1 November 2024

that day

or a later day; or

(ii) otherwise

the day the order is made or a later day.

What an order may specify

(10) A regulated labour hire arrangement order may specify when the

order ceases to be in force.

Note:

For variation and revocation of a regulated labour hire arrangement

order, see section 603.

Main amendments

Schedule 1

Closing the labour hire loophole

Part 6

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Subdivision B

Obligations of employers and regulated hosts

etc. when a regulated labour hire arrangement order

is in force

306F Protected rate of pay payable to employees if a regulated

labour hire arrangement order is in force

Application of section

(1) This section applies if a regulated labour hire arrangement order is

in force that covers a regulated host, an employer and a regulated

employee.

Employer must not pay less than protected rate of pay

(2) The employer must pay the regulated employee at no less than the

protected rate of pay for the employee in connection with the work

performed by the employee for the regulated host.

Note:

This subsection is a civil remedy provision (see Part 4-1).

Exception

(3) The employer does not contravene subsection (2) if the employer

pays the regulated employee at less than the protected rate of pay

because:

(a) the regulated host provides information to the employer

under section 306H (which deals with information about the

protected rate of pay); and

(b) the employer reasonably relies on the information for the

purposes of working out the protected rate of pay for the

regulated employee; and

Meaning of protected rate of pay

(4) Unless subsection (5) applies, the

protected rate of pay

for the

regulated employee is the full rate of pay that would be payable to

the employee if the host employment instrument covered by the

regulated labour hire arrangement order were to apply to the

employee.

Schedule 1

Main amendments

Part 6

Closing the labour hire loophole

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(5) If the regulated employee is a casual employee, and there is no

covered employment instrument that applies to the regulated host

that provides for work of that kind to be performed by casual

employees, the

protected rate of pay

for the regulated employee is

the full rate of pay that would be payable to the employee if:

(a) the employee were an employee other than a casual employee

and the host employment instrument covered by the regulated

labour hire arrangement order were to apply to the employee;

and

(b) the base rate of pay that would be payable to the employee,

in the circumstances referred to in paragraph (a), were

increased by 25%.

(6) Despite subsections (4) and (5), if the employer is a national

system employer only because of section 30D or 30N, the

protected rate of pay

for the regulated employee does not include

any amount that relates to an excluded subject matter within the

meaning of subsection 30A(1) or 30K(1).

Note:

Sections 30D and 30N extend the meaning of

national system

employer

(7) If the regulated employee is a pieceworker and paragraph 16(2)(b)

would apply to the employee were the host employment instrument

to apply to the employee, the base rate of pay that would be

payable to the employee for the purposes of subsection (5) of this

section is taken to be the base rate of pay that would be referred to

in that paragraph.

(8) If the regulated employee is a pieceworker and paragraph 18(2)(b)

would apply to the employee were the host employment instrument

to apply to the employee, the full rate of pay that would be payable

to the employee for the purposes of subsections (4) and (5) of this

section is taken to be the full rate of pay that would be referred to

in that paragraph.

(9) To avoid doubt, this section does not require that a regulated

employee referred to in subsection (5) be taken to be an employee

other than a casual employee for the purposes of determining

entitlements to kinds of leave, or any other purpose, except

determining the protected rate of pay for the regulated employee.

Main amendments

Schedule 1

Closing the labour hire loophole

Part 6

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Requirement to pay no less than protected rate of pay applies

despite other fair work instruments etc.

(10) Subsection (2) applies despite any provision of:

(a) a fair work instrument (other than an instrument made by the

FWC under this Part) that applies to the regulated employee;

(b) a covered employment instrument (other than a fair work

instrument) that applies to the regulated employee; or

(c)

the regulated employee's contract of employment;

that provides for a rate of pay for the regulated employee that is

less than the protected rate of pay for the regulated employee.

Note:

See also section 306N (effect of alternative protected rate of pay

order) and subsection 306Q(6) (effect of arbitrated protected rate of

pay order).

306G Exceptions from requirement to pay protected rate of pay

Training arrangements

(1) Section 306F does not apply to a regulated employee if a training

arrangement applies to the employee in respect of the work

performed for the regulated host.

Certain short-term arrangements

(2) Section 306F does not apply to a regulated employee if:

(a) no determination for the purposes of paragraph 306J(2)(a)

(no exemption period) that applies to the employee in respect

of the work performed for the regulated host is in force; and

(b) the employee performs, or is to perform, the work for the

regulated host during:

(i) if neither subparagraph (ii) nor (iii) applies

a period of

no longer than 3 months; or

(ii) if a determination in force under section 306J specifies a

period as the exemption period for the regulated host,

the employer and the work

a period of no longer than

the period specified; or

(iii) if subparagraph (ii) does not apply and the work

commences during a recurring extended exemption

Schedule 1

Main amendments

Part 6

Closing the labour hire loophole

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

period for work of the kind performed by the employee

for the regulated host

a period of no longer than the

remainder of the extended exemption period, or a period

of no longer than 3 months, whichever ends later.

(3) However, if the regulated employee does in fact perform the work

for longer than the maximum period applicable under

paragraph (2)(b), as a result of a variation to or the making of one

or more agreements, section 306F applies to the regulated

employee on and after the day the agreements are varied or made.

306H Obligations of regulated hosts covered by a regulated labour

hire arrangement order

Application of this section

(1) This section applies to a regulated host and an employer if the

regulated host and employer are covered by a regulated labour hire

arrangement order that is in force.

Ability to request information regarding protected rate of pay

(2) If the employer reasonably considers that the employer does not

have all of the information needed regarding what is the protected

rate of pay for one or more regulated employees covered by the

order, the employer may request, in writing, that the regulated host

provide the employer with specified information needed.

(3) The regulated host must comply with the request:

(a) as soon as reasonably practicable; and

(b) in any event, within such a period as would reasonably

enable the employer to comply with its obligations under

section 306F (protected rate of pay payable to employees if a

regulated labour hire arrangement order is in force) in

relation to the employees.

Note:

This subsection is a civil remedy provision (see Part 4-1).

Manner of complying with request

(4) The regulated host may comply with the request by:

(a) providing the employer with the information requested; or

Main amendments

Schedule 1

Closing the labour hire loophole

Part 6

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

(b) providing information, for each relevant pay period of the

employees, setting out the protected rate of pay for each

employee for the period.

Subdivision C

Short-term arrangements

306J Determination altering exemption period for short-term

arrangements

(1) This section applies if:

(a) a regulated labour hire arrangement order is in force that

covers a regulated host, an employer and one or more

regulated employees performing work for the regulated host;

(b) a regulated labour hire arrangement order has been made but

is not yet in force that covers a regulated host, an employer

and one or more regulated employees performing work for

the regulated host; or

that would cover a regulated host, an employer and one or

more regulated employees performing work for the regulated

host has been made to the FWC under section 306E but has

not been finally determined.

(2) The FWC may determine that, in relation to the regulated host, the

employer and work to be performed by one or more regulated

employees:

(a) there is no exemption period for the purposes of

section 306G; or

(b) a specified period of less than 3 months is the exemption

period for the purposes of that section; or

period for the purposes of that section.

Note:

The exemption period is used in determining whether the exception to

pay the protected rate of pay in the case of short-term arrangements in

subsection 306G(2) applies.

306K Determination of recurring extended exemption period

(1) This section applies if:

Schedule 1

Main amendments

Part 6

Closing the labour hire loophole

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(a) a regulated labour hire arrangement order is in force that

covers a regulated host, an employer and one or more

regulated employees performing work for the regulated host;

(b) a regulated labour hire arrangement order has been made but

is not yet in force that covers a regulated host, an employer

and one or more regulated employees performing work for

the regulated host; or

that would cover a regulated host, an employer and one or

more regulated employees performing work for the regulated

host has been made to the FWC under section 306E but has

not been finally determined.

(2) The FWC may determine that a specified period of more than 3

months, starting on a specified day of the year in specified

consecutive years, is a

recurring extended exemption period

for

the regulated host in relation to a specified kind of work to which

the regulated labour hire arrangement order relates.

306L Making and effect of determinations under this Subdivision

Who may apply for determination

(1) The FWC may make a determination under this Subdivision only

on application by:

(a) the regulated host, the employer or a regulated employee of

the employer who is performing or is to perform work for the

regulated host; or

(b) an organisation entitled to represent the industrial interests of

any of those persons.

Time for making determination

(2) The FWC must decide whether or not to make the determination as

quickly as possible after the application is made.

Requirements for making determination

(3) Before deciding whether or not to make the determination, the

FWC must seek the views of any person or organisation that, apart

Main amendments

Schedule 1

Closing the labour hire loophole

Part 6

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

from the applicant, could have applied for the determination under

subsection (1).

(4) The FWC may make the determination only if satisfied that there

are exceptional circumstances that justify making it, having regard

to:

(a) whether the purpose of the proposed exemption period or

recurring extended exemption period relates to satisfying a

seasonal or short-term need for workers; and

(b) the industry in which the work is performed or is to be

performed; and

(i) the regulated host; and

(ii) the employer; and

(d) the views (if any) of any persons or organisations mentioned

in subsection (1); and

(e) for a determination made for the purposes of

paragraph 306J(2)(c)

the principle that the longer the period

to be specified in the determination, the greater the

justification required; and

(f) for a determination that a period is a recurring extended

exemption period for a regulated host for a kind of work

the principle that the longer the period to be specified in the

determination, and the greater the number of recurrences of

that period to be specified, the greater the justification

required; and

(g) any other matter the FWC considers relevant.

When determination comes into force

(5) The determination comes into force on the later of the day the

regulated labour hire arrangement order comes into force, and the

following:

(a) for a determination under section 306J that there is no

exemption period for the purposes of section 306G

the day

it is made;

(b) for a determination under section 306J that there is an

exemption period of more than, or less than, 3 months for the

purposes of section 306G

the day it is made or a later day

specified in the determination;

Schedule 1

Main amendments

Part 6

Closing the labour hire loophole

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

recurring extended exemption periods)

the day it is made or

a later day specified in the determination.

Subdivision D

Alternative protected rate of pay orders

306M Making an alternative protected rate of pay order

Application of this section

(1) This section applies if:

(a) a regulated labour hire arrangement order is in force that

covers a regulated host, an employer and a regulated

employee performing work for the regulated host; or

(b) a regulated labour hire arrangement order has been made but

is not yet in force that covers a regulated host, an employer

and a regulated employee performing work for the regulated

host; or

that would cover a regulated host, an employer and a

regulated employee performing work for the regulated host

has been made to the FWC under section 306E but has not

been finally determined.

Alternative protected rate of pay order

(2) The FWC may make an order (an

alternative protected rate of pay

order

) specifying:

(a) how the rate of pay at which the employer must pay the

regulated employee in connection with the work is to be

worked out; and

(b) that the employer must pay the rate of pay worked out in that

way to the regulated employee in connection with the work.

Rate of pay

(3) The rate of pay for the purposes of paragraph (2)(a) must be the

protected rate of pay for the regulated employee that would apply

if the references in section 306F to the host employment instrument

covered by the regulated labour hire arrangement order were

Main amendments

Schedule 1

Closing the labour hire loophole

Part 6

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

instead references to a specified covered employment instrument

that:

(a) applies to a related body corporate of the regulated host and

would apply to a person employed by the related body

corporate to perform work of that kind; or

(b) applies to the regulated host and would apply to a person

employed by the regulated host to perform work of that kind

in circumstances that do not apply in relation to the

employee.

Who may apply

(4) The FWC may make an alternative protected rate of pay order only

on application by the employee, the employer, the regulated host or

an organisation entitled to represent the industrial interests of any

of those persons.

Time for making

(5) The FWC must decide whether or not to make the order as quickly

as possible after the application is made.

Criteria for making etc.

(6) The FWC must not make the order unless satisfied that:

(a) it would be unreasonable for the requirement in section 306F,

that the employer pay the regulated employee at no less than

the protected rate of pay, to apply in connection with that

work (including, for example, because the rate would be

insufficient or would be excessive); and

(b) there is a covered employment instrument of the kind

referred to in paragraph (3)(a) or (b).

(7) Before deciding whether to make the order, the FWC must seek the

views of the following:

(a) the employer;

(b) the regulated host;

be specified in the order for the purposes of subsection (3)

applies (if not the regulated host);

(d) the employee;

Schedule 1

Main amendments

Part 6

Closing the labour hire loophole

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(e) employees to whom the covered employment instrument to

be specified in the order for the purposes of subsection (3)

applies;

(f) organisations entitled to represent the industrial interests of

any of the persons referred to in paragraphs (a) to (e).

(8) In deciding whether to make the order, the FWC must have regard

to:

(a) whether the host employment instrument covered by the

regulated labour hire arrangement order applies only to a

particular class or group of employees; and

(b) whether, in practice, the host employment instrument has

ever applied to an employee at a classification, job level or

grade that would be applicable to the regulated employee;

and

in subsection (7);

(d) the rate of pay that would be payable to the regulated

employee in connection with the work if the order were

made; and

(e) any other matter the FWC considers relevant.

Exception for short-term arrangements

(9) In making an order under this section, the FWC must ensure that, if

an exception in section 306G would apply to the requirement to

pay the regulated employee at no less than the protected rate of

pay, the exception also applies in relation to the requirement to pay

the employee at the rate worked out under the alternative protected

rate of pay order.

306N Effect of alternative protected rate of pay order

When alternative protected rate of pay order comes into force

(1) An alternative protected rate of pay order comes into force:

(a) if the order is made before the regulated labour hire

arrangement order to which the order relates comes into

force:

Main amendments

Schedule 1

Closing the labour hire loophole

Part 6

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

(i) on the day the regulated labour hire arrangement order

comes into force; or

(ii) on a later day specified in the alternative protected rate

of pay order; or

(b) otherwise

on the day the alternative protected rate of pay

order is made, or on a later day specified in the order.

Effect of alternative protected rate of pay order

(2) If:

(a) a regulated labour hire arrangement order is in force that

covers a regulated host, an employer and work performed by

a regulated employee; and

(b) an alternative protected rate of pay order is made in relation

to the regulated labour hire arrangement order;

then:

to so much of the work as is performed during the period that

the alternative protected rate of pay order is in force; and

(d) during that period, the alternative protected rate of pay order

has effect despite section 306F (protected rate of pay payable

to employees if a regulated labour hire arrangement order is

in force), and despite any provision of the following that

provides for a lower rate of pay than that worked out in

accordance with the order:

(i) a fair work instrument that applies to the regulated

employee;

(ii) a covered employment instrument (other than a fair

work instrument) that applies to the regulated employee;

(iii)

the regulated employee's contract of employment.

Person must not contravene an alternative protected rate of pay

order

(3) A person must not contravene a term of an alternative protected

rate of pay order.

Note:

This subsection is a civil remedy provision (see Part 4-1).

Schedule 1

Main amendments

Part 6

Closing the labour hire loophole

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Division

3--Dealing with disputes

306P Disputes about the operation of this Part

When this Division applies to a dispute

(1) This Division applies to a dispute about the operation of this

Part if:

(a) a regulated labour hire arrangement order is in force that

covers a regulated host, an employer and a regulated

employee performing work for the regulated host; or

(b) a regulated labour hire arrangement order has been made but

is not yet in force that covers a regulated host, an employer

and a regulated employee performing work for the regulated

host.

(2) Without limiting subsection (1), this Division applies to a dispute

about:

(a) what the protected rate of pay for a regulated employee is; or

(b) whether a regulated employee has been, or is being, paid less

than the protected rate of pay for the employee.

Parties must attempt to resolve dispute at workplace level

(3) In the first instance, the parties to the dispute must attempt to

resolve the dispute at the workplace level by discussions between

the parties.

(4) If discussions at the workplace level do not resolve the dispute, a

party to the dispute may apply to the FWC to resolve the dispute.

How the FWC deals with dispute

(5) If a party to the dispute makes an application under subsection (4):

(a) the FWC must first deal with the dispute by means other than

arbitration, unless there are exceptional circumstances; and

(b) the FWC may deal with the dispute by arbitration in

accordance with section 306Q.

Note:

For the purposes of paragraph (a), the FWC may deal with the dispute

as it considers appropriate, including by mediation, conciliation,

Main amendments

Schedule 1

Closing the labour hire loophole

Part 6

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

making a recommendation or expressing an opinion (see

subsection 595(2)).

Representatives

(6) The employer, employee or regulated host may appoint a person or

organisation that is entitled to represent the industrial interests of

the employer, employee or regulated host to provide the employer,

employee or regulated host (as the case may be) with support or

representation for the purposes of:

(a) resolving the dispute; or

(b) the FWC dealing with the dispute.

Note:

A person may be represented by a lawyer or paid agent in a matter

before the FWC only with the permission of the FWC (see

section 596).

Joinder of other employees to disputes

(7) Without limiting section 609, the procedural rules may provide for

the joinder, as parties to a dispute in relation to which an employee

has made an application under subsection (4), of any other

employees who have a dispute about the operation of this Part with

the same regulated host or employer.

306Q Dealing with disputes by arbitration

(1) The FWC may deal with the dispute by arbitration, including by

making an order (an

arbitrated protected rate of pay order

)

determining:

(a) how the rate of pay at which the employer must pay the

employee in connection with the work is to be worked out;

and

(b) that the employer must pay the rate of pay worked out in that

way to the employee in connection with the work.

(2) If the employer is a national system employer only because of

section 30D or 30N, the rate of pay for the purposes of

paragraph (1)(a) of this section must not include any amount that

relates to an excluded subject matter within the meaning of

subsection 30A(1) or 30K(1).

Schedule 1

Main amendments

Part 6

Closing the labour hire loophole

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Note:

Sections 30D and 30N extend the meaning of

national system

employer

(3) The FWC must not make an arbitrated protected rate of pay order

unless the FWC considers that it would be fair and reasonable to

make the order.

(4) If the parties have notified the FWC, in writing, that they agree to

the FWC arbitrating the dispute, an arbitrated protected rate of pay

order made in relation to the dispute may apply in relation to work

performed at any time on or after the day the regulated labour hire

arrangement order comes into force.

(5) If the parties have not notified the FWC that they agree to the FWC

arbitrating the dispute, an arbitrated protected rate of pay order

made in relation to the dispute may apply only in relation to work

performed on or after:

(a) if the arbitrated protected rate of pay order is made before the

regulated labour hire arrangement order to which the order

relates comes into force

the day the regulated labour hire

arrangement order comes into force; or

(b) otherwise

the day the arbitrated protected rate of pay order

is made.

Effect of arbitrated protected rate of pay order

(6) If the FWC makes an arbitrated protected rate of pay order in

relation to the dispute, the order has effect, in relation to so much

of the work as is performed during the period to which the order

applies, despite the following:

(a) section 306F (protected rate of pay payable to employees if a

regulated labour hire arrangement order is in force);

(b) any provision of the following that provides for a lower rate

of pay than that worked out in accordance with the order:

(i) a fair work instrument that applies to the employee;

(ii) a covered employment instrument (other than a fair

work instrument) that applies to the employee;

(iii)

the employee's contract of employment.

(7) A person must not contravene a term of an arbitrated protected rate

of pay order.

Main amendments

Schedule 1

Closing the labour hire loophole

Part 6

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Note:

This subsection is a civil remedy provision (see Part 4-1).

(8) In making an order under this section, the FWC must ensure that, if

an exception in section 306G would apply to the requirement to

pay the regulated employee at no less than the protected rate of

pay, the exception also applies in relation to the requirement to pay

the employee at the rate worked out under the arbitrated protected

rate of pay order.

306R Application fees

(1) An application under subsection 306P(4) must be accompanied by

any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under that

subsection; and

(b) a method for indexing the fee; and

waived or refunded.

Division

4--Anti

avoidance

306S Preventing making of regulated labour hire arrangement

orders

(1) A person contravenes this section if:

(a) the person is an employer or a regulated host; and

(b) the person, either alone or with one or more other persons:

(i) enters into a scheme; or

(ii) begins to carry out a scheme; or

(iii) carries out a scheme; and

preventing the FWC from making a regulated labour hire

arrangement order in relation to any person or persons

(whether or not those persons are the same persons

mentioned in paragraph (b)); and

(d) as a result of that scheme or part of that scheme, the FWC is

prevented from making the order.

Schedule 1

Main amendments

Part 6

Closing the labour hire loophole

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Note:

This section is a civil remedy provision (see Part 4-1).

(2) In this section:

scheme

means:

(a) any agreement, arrangement, understanding, promise or

undertaking, whether express or implied and whether or not

enforceable, or intended to be enforceable, by legal

proceedings; or

(b) any scheme, plan, proposal, action, course of action or course

of conduct, whether unilateral or otherwise.

306T Short-term arrangements

engaging other employees

An employer covered by a regulated labour hire arrangement order

contravenes this section if:

(a) the employer is not required to pay a regulated employee at a

rate determined under or in accordance with this Part because

of the operation of subsection 306G(2) (including as it

applies because of subsection 306M(9) or 306Q(8)); and

(b) the employer engages another person to perform the same, or

substantially the same, work as that performed by the

employee for the regulated host; and

the purposes, of engaging the other person is to achieve the

result that the employer is not required to pay a regulated

employee at a rate determined under or in accordance with

this Part.

Note:

This section is a civil remedy provision (see Part 4-1).

306U Short-term arrangements

entering into other labour hire

agreements

A regulated host covered by a regulated labour hire arrangement

order contravenes this section if:

(a) an employer covered by the regulated labour hire

arrangement order is not required to pay a regulated

employee at a rate determined under or in accordance with

this Part because of the operation of subsection 306G(2)

Main amendments

Schedule 1

Closing the labour hire loophole

Part 6

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

(including as it applies because of subsection 306M(9) or

306Q(8)); and

(b) the regulated host enters into an agreement that has the result

that another person is to perform the same, or substantially

the same, work as that performed by the regulated employee

for the regulated host; and

the purposes, of engaging the other person is to achieve the

result that the employer is not required to pay a regulated

employee at a rate determined under or in accordance with

this Part.

Note:

This section is a civil remedy provision (see Part 4-1).

306V Engaging independent contractors

An employer covered by a regulated labour hire arrangement order

contravenes this section if:

(a) the employer dismisses an employee who performs, or is to

perform, work for a regulated host covered by the order; and

(b) the employer engages another person as an independent

contractor, under a contract for services, to perform that

work, or work of that kind, for the regulated host; and

engaging the independent contractor is that the employer is

not required to pay a person at a rate determined under or in

accordance with this Part; and

(d) it could reasonably be concluded that the employer dismissed

the employee and engaged the independent contractor for the

purpose, or purposes including the purpose, of achieving that

result.

Note:

This section is a civil remedy provision (see Part 4-1).

Division

5--Other matters

306W Guidelines

(1) The FWC may make written guidelines in relation to the operation

of this Part.

Schedule 1

Main amendments

Part 6

Closing the labour hire loophole

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(2) Guidelines made under subsection (1) are not a legislative

instrument.

(3) The FWC must ensure that guidelines under subsection (1) are in

force:

(a) by 1 November 2024; and

(b) at all times on and after that day.

74 Subsection 539(2) (after table item 9)

Insert:

Part 2-7A

Regulated labour hire arrangement orders

306F(2)

306H(3)

306N(3)

306Q(7)

306S(1)

306T

306U

306V

(a) an employee;

(b) an employee

organisation;

(a) the Federal

Court;

(b) the Federal

Circuit and

Family Court

of Australia

(Division 2);

State or

Territory court

for a serious

contravention

600 penalty

units; or

otherwise

penalty units

75 After paragraph 557(2)(f)

Insert:

(fa) subsection 306F(2) (which deals with the protected rate of

pay payable to employees covered by a regulated labour hire

arrangement order);

(fb) subsection 306H(3) (which deals with the obligations of

regulated hosts covered by a regulated labour hire

arrangement order);

(fc) subsection 306N(3) (which deals with the contravention of

alternative protected rate of pay orders);

(fd) subsection 306Q(7) (which deals with the contravention of

arbitrated protected rate of pay orders);

76 After paragraph 576(1)(f)

Insert:

(fa) regulated labour hire arrangement orders (Part 2-7A);

Main amendments

Schedule 1

Workplace delegates' rights

Part 7

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Part

7--Workplace delegates' rights

Division 1

Amendments commencing day after Royal

Assent

Fair Work Act 2009

77 Section 12

Insert:

delegates' rights term

means a term in a fair work instrument that

provides for the exercise of the rights of workplace delegates.

Note:

The rights of workplace delegates are set out in section 350C, and a

delegates' rights term must provide at l

east for the exercise of those

rights.

workplace delegate

: see subsection 350C(1).

78 At the end of Subdivision C of Division 3 of Part 2-3

Add:

149E

Workplace delegates' rights

A modern award must include a delegates' rights term for

workplace delegates covered by the award.

Note:

Delegates' rights term

is defined in section 12.

79 Section 169 (paragraph about Division 5)

Omit "and consultation requirements", substitute ", consultation

requirements and the rights of workplace delegates"

80 After subsection 201(1)

Insert:

Approval decision to note modern award delegates' rights term

included in an enterprise agreement

(1A) If:

Schedule 1

Main amendments

Part 7

Workplace delegates' rights

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(a) the FWC approves an enterprise agreement; and

(b)

a delegates' rights term in a modern award is taken to be a

term of the enterprise agreement because of

subsection 205A(2):

the FWC must note in its decision to approve the agreement that

the term is so included in the agreement.

81 At the end of Division 5 of Part 2-4

Add:

205A Enterprise agreements to include a delegate

s' rights term etc

(1)

An enterprise agreement must include a delegates' rights term for

workplace delegates to whom the agreement applies.

Note:

Delegates' rights term

is defined in section 12.

When modern award term prevails

(2) However, if, when the

agreement is approved, the delegates' rights

term is less favourable than the delegates' rights term in one or

more modern awards that cover the workplace delegates:

(a) the term in the enterprise agreement has no effect; and

(b) the most favourable term of those in the modern awards, as

determined by the FWC, is taken to be a term of the

enterprise agreement.

(3)

To avoid doubt, if the delegates' rights term of a modern award is

taken to be a term of an enterprise agreement, the term does not

change if the modern award changes.

82 At the end of section 273

Add:

Delegates' rights term

(6)

The determination must include a delegates' rights term for the

workplace delegates to whom the determination applies.

Note:

Delegates' rights term

is defined in section 12.

Main amendments

Schedule 1

Workplace delegates' rights

Part 7

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

(7)

The delegates' rights term must not be less favourable than the

delegates' rights term in any modern award that covers a

workplace delegate to whom the determination applies.

83 Section 334 (paragraph about Division 4)

Repeal the paragraph, substitute:

Division 4 protects freedom of association, involvement in lawful

industrial activities, and the exercise of workplace delegates'

rights.

84 At the end of Division 4 of Part 3-1

Add:

350A Protection for workplace delegates

(1) The employer of a workplace delegate must not:

(a) unreasonably fail or refuse to deal with the workplace

delegate; or

(b) knowingly or recklessly make a false or misleading

representation to the workplace delegate; or

rights of the workplace delegate under this Act or a fair work

instrument.

Note:

This subsection is a civil remedy provision (see Part 4-1).

(2) To avoid doubt, subsection (1) applies only in relation to the

workplace delegate acting in that capacity.

(3) The burden of proving that the conduct of the employer is not

unreasonable as mentioned in subsection (1) lies on the employer.

Exception

conduct required by law

(4) Subsection (1) does not apply in relation to conduct required by or

under a law of the Commonwealth or a State or a Territory.

Schedule 1

Main amendments

Part 7

Workplace delegates' rights

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

350C Workplace delegates and their rights

Meaning of

workplace

delegate

(1) A

workplace

delegate

is a person appointed or elected, in

accordance with the rules of an employee organisation, to be a

delegate or representative (however described) for members of the

organisation who work in a particular enterprise.

Rights of workplace delegates

(2) The workplace delegate is entitled to represent the industrial

interests of those members, and any other persons eligible to be

such members, including in disputes with their employer.

Note:

This section does not create any obligation on a person to be

represented by a workplace delegate.

(3) The workplace delegate is entitled to:

(a) reasonable communication with those members, and any

other persons eligible to be such members, in relation to their

industrial interests

;

and

(b) for the purpose of representing those interests:

(i) reasonable access to the workplace and workplace

facilities where the enterprise is being carried on; and

(ii) unless the employer of the workplace delegate is a small

business

reasonable access to paid time, during

normal working hours, for the purposes of related

training.

(4) The employer of the workplace delegate is taken to have afforded

the workplace delegate the rights mentioned in subsection (3) if the

employer has complied with the delegates' rights term in the fair

work instrument that applies to the workplace delegate.

(5) Otherwise, in determining what is reasonable for the purposes of

subsection (3), regard must be had to the following:

(a) the size and nature of the enterprise;

(b) the resources of the employer of the workplace delegate;

Main amendments

Schedule 1

Workplace delegates' rights

Part 7

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

85 Subsection 539(2) (table item 11, column 1)

After "350(2)", insert "350A(1)"

Division 2

Amendments commencing 1 July 2024

Fair Work Act 2009

86 Section 12

Insert:

associated regulated business

for a regulated worker: see

subsection 350B(5).

87 After section 350A

Insert:

350B Protection for workplace delegates

regulated workers

(1) The associated regulated business for a workplace delegate who is

a regulated worker must not:

(a) unreasonably fail or refuse to deal with the workplace

delegate; or

(b) knowingly or recklessly make a false or misleading

representation to the workplace delegate; or

rights of the workplace delegate under this Act or a fair work

instrument

Note:

This subsection is a civil remedy provision (see Part 4-1).

(2) To avoid doubt, subsection (1) applies only in relation to the

workplace delegate acting in that capacity.

(3) The burden of proving that the conduct of the associated regulated

business is not unreasonable as mentioned in subsection (1) lies on

the associated regulated business.

Exception

conduct required by law

(4) Subsection (1) does not apply in relation to conduct required by or

under a law of the Commonwealth or a State or a Territory.

Schedule 1

Main amendments

Part 7

Workplace delegates' rights

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Meaning of

associated

regulated business

(5) The

associated

regulated business

for a workplace delegate who is

a regulated worker is the regulated business that:

(a) engaged the workplace delegate under a services contract; or

(b) arranged for, or facilitated entry into, the services contract

under which the workplace delegate performs work.

88 Subsection 350C(1)

Omit "for members of the organisation who work in a particular

enterprise", substitute:

for either or both of the following:

(a) members of the organisation who work in a particular

enterprise;

(b) members of the organisation who perform work for, or that

has been arranged or facilitated by, a particular regulated

business.

89 Subsection 350C(2)

Omit "their employer", substitute "the employer or regulated business

concerned"

90 Subparagraphs 350C(3)(b)(i) and (ii)

Repeal the subparagraphs, substitute:

(i) in relation to employees

reasonable access to the

workplace and workplace facilities where the enterprise

concerned is being carried on; and

(ii) in relation to regulated workers

reasonable access to

the workplace facilities provided by the regulated

business concerned; and

(iii) if the workplace delegate is an employee

reasonable

access to paid time, during normal working hours, for

the purposes of related training, unless the workplace

delegate is employed by a small business.

91 Subsection 350C(4)

Repeal the subsection, substitute:

Main amendments

Schedule 1

Workplace delegates' rights

Part 7

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

(4) The employer of, or associated regulated business for, the

workplace delegate is taken to have afforded the workplace

delegate the rights mentioned in subsection (3) if the employer or

regulated business has complied with the delegates' rights term in

the fair work instrument that applies to the workplace delegate.

92 Paragraphs 350C(5)(a), (b) and (c)

Repeal the paragraphs, substitute:

(a) the size and nature of the enterprise or regulated business;

(b) the resources of the employer concerned or the regulated

business;

regulated business.

93 Subsection 539(2) (table item 11, column 1)

After "350A(1)", insert "350B(1)"

Schedule 1

Main amendments

Part 8

Strengthening protections against discrimination

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Part

8--Strengthening protections against

discrimination

Fair Work Act 2009

94 Subsection 153(1)

After "family or carer's responsibilities,", insert "subjection to family

and domestic violence,"

95 Subsection 195(1)

After "family or carer's responsibilities,", insert "subjection to family

and domestic violence,"

96 Subsection 351(1)

After "family or carer's responsibilities,", insert "subjection to family

and domestic violence,"

97 Section 578

After "family or carer's responsibilities,", insert "subjection to family

and domestic violence,"

98 Paragraph 772(1)(f)

After "family or carer's responsibilities,", insert "subjection to family

and domestic violence,"

99 Before section 789HA

Insert:

Division

1--Breastfeeding, gender identity and intersex

status

100 Section 789HA (heading)

Omit "

Part

", substitute "

Division

101 Section 789HA

Omit "Part", substitute "Division"

Main amendments

Schedule 1

Strengthening protections against discrimination

Part 8

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

102 At the end of Part 6-4E

Add:

Division

2--Family and domestic violence

789HC Constitutional basis of this Division

This Division relies on the Commonwealth's legislative powers

under paragraph 51(xxix) (external affairs) of the Constitution as it

relates to giving effect to Australia's obligations under:

(a) the ILO Convention (No. 111) concerning Discrimination in

respect of Employment and Occupation, done at Geneva on

25 June 1958; and

(b) the ILO Convention (No. 190) concerning the elimination of

violence and harassment in the world of work, done at

Geneva on 21 June 2019.

Note:

The Conventions could in 2023 be viewed in the Australian Treaties

Library on the AustLII website (http://www.austlii.edu.au).

789HD Extension of anti-discrimination rules

(1) Subsection (3) applies for the purposes of the operation of the

provisions identified in subsection (2) in relation to family and

domestic violence.

(2) The provisions are as follows:

(a) section 153;

(b) section 172A;

(d) section 351.

(3) In applying sections 30H and 30S in relation to that operation of

the provisions identified in subsection (2), assume that:

(a) the matter to which that operation of those provisions relates

is not an excluded subject matter for the purposes of:

(i)

the State's referral law mentioned in sections

30H and

30S; and

(ii) Divisions 2A and 2B of Part 1-3; and

Main amendments

Schedule 1

Sham arrangements

Part 9

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Part

9--Sham arrangements

Fair Work Act 2009

103 Subsection 357(2)

Repeal the subsection, substitute:

(2) Subsection (1) does not apply if the employer proves that, when the

representation was made, the employer reasonably believed that

the contract was a contract for services.

(3) In determining, for the purpose of subsection (2), whether the

employer's belief was reasonable:

(a)

regard must be had to the size and nature of the employer's

enterprise; and

(b) regard may be had to any other relevant matters.

Schedule 1

Main amendments

Part 10

Exemption certificates for suspected underpayment

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Part

10--Exemption certificates for suspected

underpayment

Fair Work Act 2009

104 Subsection 481(1) (note 4)

After "Subdivision", insert ", or otherwise act in an improper manner"

105 Subsection 483A(1) (note 3)

After "Subdivision", insert ", or otherwise act in an improper manner"

106 Section 484 (note 2)

After "Subdivision", insert ", or otherwise act in an improper manner"

107 Subsection 492(3) (note 2)

After "this section", insert ", or otherwise act in an improper manner"

108 Section 500 (note 3)

Omit ",

exercising rights under this Part", insert "exercising rights

under this Part, or otherwise act in an improper manner"

109 Section 502 (at the end of the heading)

Add "

etc.

110 At the end of subsection 502(1)

Add ", or otherwise act in an improper ma

nner.

111 Subsection 502(2)

Omit "hindering or obstructing a permit holder", substitute "conduct

referred to in subsection (

1)"

112 Subsection 502(3)

Omit "hindering or obstructing", substitute "conduct"

113 After paragraph 508(2)(d)

Insert:

Main amendments

Schedule 1

Exemption certificates for suspected underpayment

Part 10

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

(da) requiring, for a specified period, some or all of the exemption

certificates that might be issued in relation to the organisation

on the ground mentioned in subparagraph 519(1)(b)(ii)

(suspected underpayment) to be issued subject to specified

conditions;

114 After paragraph 508(2)(e)

Insert:

(ea) banning, for a specified period, the issue of exemption

certificates on the ground mentioned in

subparagraph 519(1)(b)(ii) (suspected underpayment) in

relation to the organisation, either generally or to specified

permit holders;

115 Subdivision D of Division 5 of Part 3-4 (heading)

After "

must

", insert "

impose conditions on,

116 Section 510 (heading)

After "

must

", insert "

impose conditions on,

117 Subsection 510(1) (heading)

After "

must

", insert "

impose conditions on,

118 Subsection 510(1)

After "subsection,", insert "impose conditions on,"

119 Subsection 510(5) (at the end of the heading)

Add "

if entry permit revoked or suspended

120 Subsection 510(5)

Omit "takes action", substitute "revokes or suspends an entry permit"

121 Paragraph 510(6)(a)

Omit "action is taken", substitute "entry permit is revoked or

suspended"

122 Paragraph 519(1)(b)

Repeal the paragraph, substitute:

Schedule 1

Main amendments

Part 10

Exemption certificates for suspected underpayment

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(b) either:

(i) the FWC reasonably believes that advance notice of the

entry given by an entry notice might result in the

destruction, concealment or alteration of relevant

evidence; or

(ii) the FWC is satisfied that the suspected contravention, or

contraventions, involve the underpayment of wages, or

other monetary entitlements, of a member of the

organisation whose industrial interests the organisation

is entitled to represent and who performs work on the

premises.

123 After paragraph 519(2)(d)

Insert:

(da) if the exemption certificate is issued on the ground

mentioned in subparagraph (1)(b)(ii) (suspected

underpayment)

the names of any permit holders who may

enter;

Main amendments

Schedule 1

Penalties for civil remedy provisions

Part 11

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Part

11--Penalties for civil remedy provisions

Division 1

Penalties

Fair Work Act 2009

124 Subsection 539(2) (cell at table item 1, column 4)

Repeal the cell, substitute:

for a serious

contravention

3,000

penalty units;

otherwise

300 penalty

units

125 Subsection 539(2) (cell at table item 2, column 4)

Repeal the cell, substitute:

for a serious

contravention

3,000

penalty units;

otherwise

300 penalty

units

126 Subsection 539(2) (cell at table item 3, column 4)

Repeal the cell, substitute:

for a serious

contravention

3,000

penalty units;

otherwise

300 penalty

units

Schedule 1

Main amendments

Part 11

Penalties for civil remedy provisions

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

127 Subsection 539(2) (cell at table item 4, column 4)

Repeal the cell, substitute:

for a serious

contravention

3,000

penalty units;

otherwise

300 penalty

units

128 Subsection 539(2) (cell at table item 5, column 4)

Repeal the cell, substitute:

for a serious

contravention

3,000

penalty units;

otherwise

300 penalty

units

129 Subsection 539(2) (cell at table item 7, column 4)

Repeal the cell, substitute:

for a serious

contravention

3,000

penalty units;

otherwise

300 penalty

units

130 Subsection 539(2) (cell at table item 8, column 4)

Repeal the cell, substitute:

Main amendments

Schedule 1

Penalties for civil remedy provisions

Part 11

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

for a serious

contravention

3,000

penalty units;

otherwise

300 penalty

units

131 Subsection 539(2) (cell at table item 9, column 4)

Repeal the cell, substitute:

for a serious

contravention

3,000

penalty units;

otherwise

300 penalty

units

132 Subsection 539(2) (cell at table item 10, column 4)

Repeal the cell, substitute:

for a serious

contravention

3,000

penalty units;

otherwise

300 penalty

units

133 Subsection 539(2) (cell at table item 10A, column 4)

Repeal the cell, substitute:

Schedule 1

Main amendments

Part 11

Penalties for civil remedy provisions

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

for a serious

contravention

3,000

penalty units;

otherwise

300 penalty

units

134 Subsection 539(2) (table item 11, column 1)

Omit "357(1)"

135 Subsection 539(2) (table item 11, column 1)

Omit "358"

136 Subsection 539(2) (table item 11, column 1)

Omit "359"

137 Subsection 539(2) (after table item 11)

Insert:

11A

357(1)

358

359

(a) a person affected

by the

contravention;

(b) an industrial

association;

(a) the Federal

Court;

(b) the Federal

Circuit and

Family Court

of Australia

(Division 2)

300 penalty

units

138 Subsection 539(2) (cell at table item 29, column 4)

Repeal the cell, substitute:

for a serious

contravention

3,000

penalty units;

otherwise

300 penalty

units

Main amendments

Schedule 1

Penalties for civil remedy provisions

Part 11

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

139 Subsection 539(2) (table item 29AA, column 4)

Omit "60 penalty units", substitute "300 penalty units"

140 Subsection 539(2) (table item 29A, column 4)

Omit "60 penalty units", substitute "300 penalty units"

141 Subsection 539(2) (table item 32, column 4)

Omit "60 penalty units", substitute "300 penalty units"

142 Subsection 539(2) (table item 33, column 4)

Omit "30 penalty units", substitute "300 penalty units"

143 Subsection 539(2) (table item 33A, column 4)

Omit "60 penalty units", substitute "300 penalty units"

144 Subsection 539(2) (table item 34, column 4)

Omit "60 penalty units", substitute "300 penalty units"

145 Paragraph 557A(1)(a)

Omit "and", substitute "or"

146 Paragraph 557A(1)(b)

Repeal the paragraph, substitute:

(b) the person was reckless as to whether the contravention

would occur.

147 Subsection 557A(1) (example)

Repeal the example, substitute:

Example: Generally, subsection 323(1) requires an employer to pay an employee

the full amount payable to the employee in relation to the performance

of work.

A contravention of subsection 323(1) is a serious contravention if the

employer knowingly does not pay the employee in full or is reckless

as to whether the failure would occur. It does not matter if the

employer does not know the exact amount of the underpayment.

148 Subsections 557A(2) to (5)

Repeal the subsections, substitute:

Schedule 1

Main amendments

Part 11

Penalties for civil remedy provisions

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(2) For the purposes of subsection (1), a person is reckless as to

whether a contravention would occur if:

(a) the person is aware of a substantial risk that the contravention

would occur; and

(b) having regard to the circumstances known to the person, it is

unjustifiable to take the risk.

Division 2

Contingent amendments

Fair Work Act 2009

149 Subsection 539(2) (cell at table item 34AAA, column 4)

Repeal the cell, substitute:

for a serious

contravention

3,000

penalty units;

otherwise

300 penalty

units

Division 3

Underpayments

Fair Work Act 2009

150 Section 12

Insert:

associated with an underpayment amount

: see

subsection 546A(1).

151 Subsection 539(2) (after note 3)

Insert:

Note 3A: The penalties referred to in column 4 of the table are adjusted for

bodies corporate and for contraventions associated with underpayment

amounts (see section 546).

Main amendments

Schedule 1

Penalties for civil remedy provisions

Part 11

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

152 Subsection 546(2)

Omit "The", substitute "Unless

subsection (

2A) applies, the"

153 After subsection 546(2)

Insert:

(2A) If:

(a) the contravention is associated with an underpayment

amount; and

(b) the application specifies that the applicant wants the

maximum penalty to be calculated based on a multiple of the

underpayment amount; and

provision under section 550 (person involved in a

contravention);

the pecuniary penalty must not be more than:

(d) if the person is an individual

the greater of the following:

(i) the maximum number of penalty units referred to in the

relevant item in column 4 of the table in

subsection 539(2);

(ii) 3 times the underpayment amount; or

(e) if the person is a body corporate

the greater of the

following:

(i) 5 times the maximum number of penalty units referred

to in the relevant item in column 4 of the table in

subsection 539(2);

(ii) 3 times the underpayment amount.

Note:

For when contravention of a civil remedy provision is associated with

an underpayment amount, see section 546A.

154 After section 546

Insert:

546A Underpayment amounts associated with contravention of civil

remedy provisions

(1) A contravention of a civil remedy provision is

associated with an

underpayment amount

if:

Schedule 1

Main amendments

Part 11

Penalties for civil remedy provisions

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(a) an employer is required to pay an amount (a

required

amount

) to, on behalf of, or for the benefit of, an employee

under this Act, a fair work instrument or a transitional

instrument (as continued in existence by Schedule 3 to the

Transitional Act); and

(b) the employer engages in conduct; and

on behalf of, or for the benefit of, the employee in full on or

before the day when the required amount is due for payment;

and

(d) the failure is related to the contravention.

(2) The

underpayment amount

the contravention is associated with is,

to the extent it can be determined by the court, the difference

between:

(a) the required amount mentioned in paragraph (1)(a); and

(b) the amount (including a nil amount) the employer actually

paid to, on behalf of, or for the benefit of, the employee on

account of the required amount.

Main amendments

Schedule 1

Compliance notice measures

Part 12

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Part

12--Compliance notice measures

Fair Work Act 2009

155 At the end of subsection 545(2)

Add:

; (d) an order requiring a person to comply, either wholly or

partly, with a notice (other than an infringement notice) given

to the person by an inspector or the Fair Work Ombudsman.

156 At the end of paragraph 716(2)(a)

Add "(including to calculate and pay the amount of any

underpayment)"

Schedule 1

Main amendments

Part 13

Withdrawal from amalgamations

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Part

13--Withdrawal from amalgamations

Fair Work (Registered Organisations) Act 2009

157 Paragraph 92(a)

Omit "(either under this Act or the

Workplace Relations Act 1996

as in

force before the commencement of this Part)", substitute "under this

Act"

158 Paragraph 92(b)

Omit ", divisions or parts"

159 Section 92A

Repeal the section.

160 Subsection 93(1) (definition of

amalgamated

organisation

)

Omit "of Part

2, or an equivalent provision of a predecessor law"

161 Subsection 93(1) (definition of

amalgamated

organisation

)

Omit "or a predecessor law"

162 Subsection 93(1) (paragraph (b) of the definition of

constituent member

)

Omit "or a predecessor law"

163 Subsection 93(1) (subparagraph (b)(i) of the definition of

constituent part

)

Omit "or a predecessor law"

164 Subsection 93(1) (definition of

designated official

)

Repeal the definition.

165 Subsection 93(1) (definition of

predecessor law

)

Repeal the definition.

Main amendments

Schedule 1

Withdrawal from amalgamations

Part 13

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

166 Subsection 93(1) (paragraph (a) of the definition of

separately identifiable constituent part

)

Omit "or a predecessor law"

167 Subsection 93(1) (paragraph (b) of the definition of

separately identifiable constituent part

)

Omit "part; or", substitute "part

168 Subsection 93(1) (paragraph (c) of the definition of

separately identifiable constituent part

)

Repeal the paragraph.

169 Subsection 93(1) (definition of

workplace or safety law

)

Repeal the definition.

170 Subsection 93(2)

Omit "or a predecessor law" (wherever occurring)

171 Subsection 93(3)

Repeal the subsection.

172 Subsection 93(4)

Omit "or a predecessor law"

173 Subsection 94(1)

After "secret", insert "postal"

174 Paragraph 94(1)(a)

Omit "or a predecessor law"

175 Sections 94A and 95A

Repeal the sections.

176 Subsection 100(1)

After "secret", insert "postal"

Schedule 1

Main amendments

Part 13

Withdrawal from amalgamations

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

177 Paragraph 100(1)(ba)

Repeal the paragraph.

178 Subsection 100(4)

Repeal the subsection (including the note).

179 Subsection 102(1) (heading)

Repeal the heading.

180 Subsections 102(1A), (1B) and (1C)

Repeal the subsections.

181 Subsection 102(2) (heading)

Repeal the heading.

182 Subsection 102(2)

Omit "In the case of a postal ballot, the ballot paper", substitute "The

ballot paper"

183 Paragraphs 102(2)(aa) and (ca)

Repeal the paragraphs.

184 Subsection 102(3)

Omit "In any postal ballot", substitute "In a ballot"

185 Subsection 102(3)

Omit ", or designated official,"

186 Subsection 102(4)

Repeal the subsection.

187 Section 103 (heading)

Omit "

person conducting ballot

", substitute "

electoral officials

188 Subsection 103(1) (heading)

Repeal the heading.

Main amendments

Schedule 1

Withdrawal from amalgamations

Part 13

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

189 Subsections 103(1A), (1B) and (1C)

Repeal the subsections.

190 Subsection 103(2) (heading)

Repeal the heading.

191 Subsection 103(2)

Omit "or an order made under

subsection (

1C)"

192 Subsection 103(5) (heading)

Repeal the heading.

193 Subsection 103(7) (heading)

Repeal the heading.

194 Subsection 103(7)

Omit "or (1A

) is kept in electronic form, the electoral official, or

designated official,", substitute "is kept in electronic form, the electoral

official"

195 Subsection 104(1)

Omit "or (1A), or an order is made under

subsection 1

03(1C),"

196 Subsection 104(1A)

Repeal the subsection.

197 Subsection 106(1)

Omit ", or the designated official,"

198 Paragraph 106(1)(c)

Omit "or designated official"

199 Subsections 106(2) and (3)

Omit "or designated official"

200 Section 107 (heading)

Omit "

person conducting ballot

", substitute "

AEC

Schedule 1

Main amendments

Part 13

Withdrawal from amalgamations

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

201 Subsection 107(1)

Omit ", or the designated official,"

202 Subsection 107(2)

Omit "or designated official"

203 Subsection 107(4)

Omit "or designated official" (wherever occurring)

204 Paragraph 109(2)(a)

Repeal the paragraph, substitute:

(a) the assets and liabilities of the constituent part before it, or

the organisation of which it was a State or Territory branch,

was de-registered under Part 2 in connection with the

formation of the amalgamated organisation; and

205 Paragraph 109(2)(b)

Omit "if

paragraph (a) applies

--"

206 Paragraph 109(2)(ba)

Repeal the paragraph.

207 Sections 110A and 110B

Repeal the sections.

208 Section 111 (heading)

Omit "

Membership

", substitute "

Choice

209 Paragraph 111(3)(b)

Repeal the paragraph, substitute:

(b) invite the person to give written notice, within a period of 28

days after being sent the statement (the

notice period

), to the

amalgamated organisation or to the newly registered

organisation that:

(i) the person wants to remain a member of the

amalgamated organisation; or

Main amendments

Schedule 1

Withdrawal from amalgamations

Part 13

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

(ii) the person wants to become a member of the newly

registered organisation; and

invitation.

210 Subsection 111(4)

Repeal the subsection, substitute:

(4) As soon as practicable after the amalgamated organisation receives

a notice under paragraph (3)(b), it must notify the newly registered

organisation of the receipt.

(5) As soon as practicable after the newly registered organisation

receives a notice under paragraph (3)(b), it must notify the

amalgamated organisation of the receipt.

(6) If a person referred to in subsection (2) gives written notice in

accordance with paragraph (3)(b), within the notice period, that the

person wants to become a member of the newly registered

organisation, the person:

(a) ceases, by force of this subsection, to be a member of the

amalgamated organisation with effect from the end of the day

on which the notice is received by the amalgamated

organisation or the newly registered organisation (as the case

may be); and

(b) becomes, by force of this subsection and without payment of

entrance fee, a member of the newly registered organisation

with effect from the day after the day referred to in

paragraph (a) of this subsection.

(7) If a person referred to in subsection (2) gives written notice in

accordance with paragraph (3)(b), within the notice period, that the

person wants to remain a member of the amalgamated

organisation, the person remains a member of the amalgamated

organisation.

(8) If a person referred to in subsection (2) fails to give written notice

in accordance with paragraph (3)(b), the person:

(a) ceases, by force of this subsection, to be a member of the

amalgamated organisation with effect from the end of the day

after the end of the notice period; and

Schedule 1

Main amendments

Part 13

Withdrawal from amalgamations

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(b) becomes, by force of this subsection and without payment of

entrance fee, a member of the newly registered organisation

with effect from the day after the day referred to in

paragraph (a) of this subsection.

(9) A person who ceases to be a member of the amalgamated

organisation because of the operation of subsection (6):

(a) is not liable to make any payment because the person gave no

notice, or insufficient notice, of ceasing to be such a member

under the rules of the organisation; and

(b) otherwise, remains liable for such payments as are due in

accordance with those rules.

(10) Despite subsection (8), if a person to whom that subsection would

apply, at any time before the day upon which the constituent part is

registered as an organisation under section 110, gives notice in

writing to the amalgamated organisation or to the applicant for a

ballot under section 94 that the person wishes to remain a member

of the amalgamated organisation after the registration of the

constituent part as an organisation under section 110, the person

remains a member of the amalgamated organisation.

(11) As soon as practicable after the end of the notice period, the

amalgamated organisation must notify the newly registered

organisation of any notices under subsection (10) it has received.

(12) As soon as practicable after the end of the notice period, the newly

registered organisation must notify the amalgamated organisation

of any notices under subsection (10) the applicant under section 94

has received.

211 Subsection 123(2)

Repeal the subsection, substitute:

(2) However, the rules must not permit a person to hold office after the

later of:

(a)

the day that would have been the person's last day of term in

the constituent office if the withdrawal had not occurred; and

(b) the first anniversary of the withdrawal day.

Main amendments

Schedule 1

Withdrawal from amalgamations

Part 13

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

212 Application of amendments

Definitions

(1)

In this item:

old Act

means the

Fair Work (Registered Organisations) Act 2009

, as

in force immediately before the commencement of this item.

Applications for withdrawal made before commencement

(2)

Despite the amendments of the

Fair Work (Registered Organisations)

Act 2009

made by this Part and subject to subitem (3), Part 3 of

Chapter 3 of the old Act continues to apply as if those amendments had

not been made, in relation to:

(a) an application that was made to the FWC under section 94 of

the old Act; and

(b) anything done in relation to the application (whether before

or after the commencement of this item).

(3)

If:

(a) an application was made to the FWC under section 94 of the

old Act for a secret ballot to be held to decide whether a

constituent part of an amalgamated organisation should

withdraw from the organisation; and

(b) either or both of the following apply:

(i) the application related to a constituent part of the

amalgamated organisation that is a branch, division or

part of the organisation referred to in paragraph (c) of

the definition of

separately identifiable constituent

part

in subsection 93(1) of the old Act;

(ii) the application was made after the end of the period

referred to in paragraph 94(1)(c) of the old Act; and

signed under subsection 106(1) of the old Act before 1 July

2023;

then:

(d) the application is taken not to have been made; and

(e) anything that was done in relation to the application before

the commencement of this item (including by the applicant,

the FWC, the AEC or any other person):

Schedule 1

Main amendments

Part 13

Withdrawal from amalgamations

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(i) is taken not to have been done; and

(ii) has no effect on or after the commencement of this item.

(4)

For the purposes of paragraph (3)(c), if a certificate in relation to a

ballot was prepared, dated and signed under subsection 106(1) of the

old Act before 1 July 2023, it does not matter if the FWC has made, or

makes, an order under paragraph 108(2)(b) of the

Fair Work

(Registered Organisations) Act 2009

that a fresh ballot be conducted in

place of the ballot because of an irregularity.

Main amendments

Schedule 1

Wage theft

Part 14

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Part

14--Wage theft

Fair Work Act 2009

213 Section 12

Insert:

Australian government

: see subsection 794A(2).

contravene

this Act, or a provision of this Act, includes contravene

any of the following:

(a) a civil remedy provision;

(b) a provision of this Act that creates an offence;

cooperation agreement

: see subsection 717B(1).

engage in conduct

means:

(a) do an act; or

(b) omit to perform an act.

Finance Minister

means the Minister administering the

Public

Governance, Performance and Accountability Act 2013

governing body

of an agency of the Commonwealth: see

subsection 794B(5).

offence against

this Act, or a particular provision of this Act,

includes a reference to an offence against a related offence

provision.

Note:

See also section 11.6 of the

Criminal Code

related offence provision

means:

(a) section 6 of the

Crimes Act 1914

; or

(b) a provision of Part 2.4 of the

Criminal Code

;

to the extent that the offence created by the provision relates to an

offence against this Act other than an offence mentioned in

paragraph (a) or (b).

Schedule 1

Main amendments

Part 14

Wage theft

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

responsible agency

in relation to a contravention of a civil remedy

provision by an Australian government or the commission of an

offence by the Commonwealth: see subsection 794C(4).

underpayment amount

(a) in relation to a contravention of a civil remedy provision

see subsection 546A(2); and

(b) in relation to the commission of an offence against

subsection 327A(1)

see subsection 327A(7).

Voluntary Small Business Wage Compliance Code

means the

Voluntary Small Business Wage Compliance Code declared under

subsection 327B(1).

214 At the end of subsection 37(2)

Add ", except as provided for by

subsection (

3)"

215 At the end of section 37

Add:

(3) The Crown in right of the Commonwealth is liable to be

prosecuted for an offence against any of the following provisions:

(a) subsection 327A(1);

(b) a related offence provision, to the extent that the related

offence provision relates to an offence against

subsection 327A(1).

(4) The Crown, in each of its capacities and to the extent the

Commonwealth's legislative power permits, is liable to be the

subject of proceedings for a contravention of a civil remedy

provision.

216 Section 321 (after the paragraph relating to Division 2)

Insert:

Division 2 also makes it an offence for a national system employer

to fail to pay certain amounts to, on behalf of, or for the benefit of,

a national system employee.

Main amendments

Schedule 1

Wage theft

Part 14

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

217 Before section 323

Insert:

Subdivision A

Civil remedy provisions relating to payment of

wages etc.

218 Subsection 324(1) (note 1)

Omit "Division", substitute "Subdivision"

219 Section 327 (heading)

Omit "

Division

", substitute "

Subdivision

220 At the end of Division 2 of Part 2-9

Add:

Subdivision B

Offence for failing to pay certain amounts as

required

327A Offence

failing to pay certain amounts as required

(1) An employer commits an offence if:

(a) the employer is required to pay an amount (a

required

amount

) to, on behalf of, or for the benefit of, an employee

under:

(i) this Act; or

(ii) a fair work instrument; or

(iii) a transitional instrument (as continued in existence by

Schedule 3 to the Transitional Act); and

(b) the required amount is not:

(i) a contribution payable to a superannuation fund for the

benefit of the employee; or

(ii) an amount covered by subsection (2); and

(d) the conduct results in a failure to pay the required amount to,

on behalf of, or for the benefit of, the employee in full on or

before the day when the required amount is due for payment.

Note 1:

For the penalty for an offence against this subsection, see

subsection (5).

Schedule 1

Main amendments

Part 14

Wage theft

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Note 2:

A single payment to, on behalf of, or for the benefit of, an employee

in relation to a particular period may comprise more than one required

amount. For example, a single payment consisting of:

(a) a required amount referable to wages earned during the period;

and

(b) a required amount referable to paid leave taken during the period.

(2) For the purposes of subparagraph (1)(b)(ii), an amount is covered

by this subsection if:

(a) either of the following apply:

(i) the employee is a national system employee only

because of section 30C or 30M (which extend the

meaning of

national system employee

);

(ii) the employer is a national system employer only

because of section 30D or 30N (which extend the

meaning of

national system employer

); and

(b) the amount is referable to the employee taking a period of:

(i) long service leave; or

(ii) paid leave that the employee was entitled to take by

reason of being a victim of crime; or

(iii) paid leave that the employee was entitled to take

because the employee attended for service on a jury, or

for emergency services duties.

Fault elements

(3) For the purposes of subsection (1):

(a) absolute liability applies to paragraphs (1)(a) and (b); and

(b) the fault element for paragraphs (1)(c) and (d) is intention.

Note 1:

For

absolute liability

, see section 6.2 of the

Criminal Code

Note 2:

For

intention

, see section 5.2 of the

Criminal Code

Things given or provided, and amounts required to be spent or

paid, in contravention of Subdivision A

(4) Section 327 applies for the purposes of determining whether a

person commits an offence against subsection (1) of this section in

the same way as it applies in proceedings for recovery of an

amount payable to an employee in relation to the performance of

work.

Main amendments

Schedule 1

Wage theft

Part 14

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Penalty

general

(5) An offence against subsection (1) is punishable on conviction as

follows:

(a) for an individual

by a term of imprisonment of not more

than 10 years or a fine of not more than the amount

determined under subsection (6), or both;

(b) for a body corporate

by a fine of not more than the amount

determined under subsection (6).

Determining maximum fine

(6) For the purposes of subsection (5), the amount is:

(a) if the court can determine the underpayment amount for the

offence

the greater of 3 times the underpayment amount

and whichever of the following applies:

(i) for an individual

5,000 penalty units;

(ii) for a body corporate

25,000 penalty units; or

(b) otherwise

the following amount:

(i) for an individual

5,000 penalty units;

(ii) for a body corporate

25,000 penalty units.

Underpayment amount

(7) The

underpayment amount

for an offence committed by an

employer against subsection (1) is the difference between:

(a) the required amount mentioned in paragraph (1)(a); and

(b) the amount (including a nil amount) the employer actually

paid to, on behalf of, or for the benefit of, the employee on

account of the required amount.

Penalty for courses of conduct

(8) If:

(a) a person is found guilty of committing 2 or more offences

(the

aggregated offences

) against subsection (1); and

(b) the aggregated offences arose out of a course of conduct by

the person;

Schedule 1

Main amendments

Part 14

Wage theft

100

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

then, subject to subsections (9) and (10), the person is taken for the

purposes of subsections (5) to (7) to have been found guilty of only

a single offence.

(9) Paragraph (6)(a) applies in relation to the single offence if, and

only if, the court can determine the underpayment amount for any

of the aggregated offences.

(10) The underpayment amount for the single offence is taken to be the

sum of each of the underpayment amounts for the aggregated

offences that the court can determine.

327B The Voluntary Small Business Wage Compliance Code

(1) The Minister may, by legislative instrument, declare a Voluntary

Small Business Wage Compliance Code.

(2) If the Fair Work Ombudsman is satisfied that a small business

employer complied with the Voluntary Small Business Wage

Compliance Code in relation to a failure by the employer to pay an

amount to, on behalf of, or for the benefit of, an employee, the Fair

Work Ombudsman must not:

(a) refer any conduct that resulted in the failure to the Director of

Public Prosecutions or the Australian Federal Police for

action in relation to a possible offence against

subsection 327A(1); or

(b) enter into a cooperation agreement with the employer that

covers any conduct that resulted in the failure.

(3) The Fair Work Ombudsman must give the employer written notice

of a decision under subsection (2).

(4) Subsection (2) does not affect:

(a) the power of an inspector to institute or continue civil

proceedings in relation to the conduct; or

(b) the power of the Fair Work Ombudsman to accept an

enforceable undertaking under section 715 in relation to the

conduct; or

in relation to the conduct; or

Main amendments

Schedule 1

Wage theft

Part 14

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

101

(d) any other power or function of the Fair Work Ombudsman or

an inspector that is not mentioned in paragraph (2)(a) or (b)

of this section.

327C Commencing proceedings for certain offences against this Act

(1) Proceedings for an offence against:

(a) subsection 327A(1) (offence for failing to pay amounts as

required); or

(b) a related offence provision, to the extent that the related

offence provision relates to an offence against

subsection 327A(1);

may be commenced only by the Director of Public Prosecutions or

the Australian Federal Police.

(2) Despite anything in any other law, proceedings for an offence

against a provision referred to in paragraph (1)(a) or (b) may be

commenced at any time within 6 years after the commission of the

offence.

221 Paragraph 682(1)(c)

Omit "any act", substitute "any conduct"

222 Paragraph 682(1)(c)

After "this Act", insert ", a related offence provision"

223 After paragraph 682(1)(d)

Insert:

(da) to publish a compliance and enforcement policy, including

guidelines relating to the circumstances in which the Fair

Work Ombudsman will, or will not:

(i) accept or consider accepting undertakings under

section 715; or

(ii) enter or consider entering into cooperation agreements

under section 717B;

224 At the end of section 682

Add:

Schedule 1

Main amendments

Part 14

Wage theft

102

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(3) Before publishing a compliance and enforcement policy under

paragraph (1)(da), the Fair Work Ombudsman must consult with

the National Workplace Relations Consultative Council about the

guidelines referred to in that paragraph.

225 Paragraph 706(1)(a)

After "this Act", insert ", a related offence provision"

226 Subsection 711(1)

Omit "a civil remedy provision", substitute "this Act"

227 Paragraph 712AA(1)(a)

After "this Act", insert ", a related offence provision"

228 At the end of section 713

Add:

Employee records and pay slips

(4) Subsections (2) and (3) do not apply to:

(a) an employee record in relation to an employee that is made

under section 535; or

(b) a copy of a pay slip created in relation to an employee.

229 Section 713A

Before "The following are not admissible", insert "(1)"

230 At the end of section 713A

Add:

(2) Subsection (1) does not apply to:

(a) an employee record in relation to an employee that is made

under section 535; or

(b) a copy of a pay slip created in relation to an employee.

231 After Subdivision DD of Division 3 of Part 5-2

Insert:

Main amendments

Schedule 1

Wage theft

Part 14

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

103

Subdivision DE

Cooperation agreements

717A Effect of cooperation agreement

(1) While a cooperation agreement is in force between the Fair Work

Ombudsman and a person, the Fair Work Ombudsman must not

refer conduct engaged in by the person that is covered by the

agreement to the Director of Public Prosecutions or the Australian

Federal Police for action in relation to a possible offence.

Note:

See subsection 717B(1) for the definition of

cooperation agreement

(2) Subsection (1) does not prevent:

(a) an inspector instituting or continuing civil proceedings in

relation to the conduct; or

(b) conduct engaged in by any other person from being referred

to the Director of Public Prosecutions or the Australian

Federal Police for action in relation to a possible offence.

717B Entry into cooperation agreement

(1) The Fair Work Ombudsman may enter into a written agreement (a

cooperation agreement

) with a person covering specified conduct

engaged in by the person that the person has reported to the Fair

Work Ombudsman as amounting to the possible commission by

the person of an offence, or at least the physical elements of an

offence, against either or both of the following:

(a) subsection 327A(1) (failing to pay amounts as required);

(b) a related offence provision, to the extent that the offence

created by the provision relates to an offence against

subsection 327A(1).

(2) The Fair Work Ombudsman must have regard to the following

matters in deciding whether to enter into a cooperation agreement

with a person in relation to conduct:

(a) wh

ether in the Fair Work Ombudsman's view the person has

made a voluntary, frank and complete disclosure of the

conduct, and the nature and level of detail of the disclosure;

(b)

whether in the Fair Work Ombudsman's view the person has

cooperated with the Fair Work Ombudsman in relation to the

conduct;

Schedule 1

Main amendments

Part 14

Wage theft

104

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(c)

the Fair Work Ombudsman's assessment of the person's

commitment to continued cooperation in relation to the

conduct, including by way of providing the Fair Work

Ombudsman with comprehensive information to enable the

effectiveness of the person's actions and approach to

remedying the effects of the conduct to be assessed;

(d) the nature and gravity of the conduct;

(e) the circumstances in which the conduct occurred;

(f)

the person's history of compliance

with this Act;

(g) any other matters prescribed by the regulations.

(3) The regulations may prescribe matters in relation to the content of

cooperation agreements.

717C When a cooperation agreement is in force

A cooperation agreement is in force:

(a) from the time it is entered into or any later time specified in

the agreement; and

(b) until the earliest of the following:

(i) the Fair Work Ombudsman terminates the agreement in

accordance with section 717D;

(ii) the person withdraws from the agreement in accordance

with section 717E;

(iii) the expiry date (if any) specified in the agreement.

717D Termination of cooperation agreement by Fair Work

Ombudsman

(1) The Fair Work Ombudsman may terminate a cooperation

agreement with a person at any time, by written notice to the

person, if the Fair Work Ombudsman is satisfied that any of the

following grounds exist:

(a) the person has contravened a term of the agreement;

(b) the person has, in relation to the agreement, given

information or produced a document to the Fair Work

Ombudsman, an inspector, or a person referred to in

subsection 712AA(2) that:

(i) is false or misleading; or

Main amendments

Schedule 1

Wage theft

Part 14

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

105

(ii) for information

omits any matter or thing without

which the information is misleading;

whether the person gave the information or produced the

document before the agreement was entered into or since;

(2) If the Fair Work Ombudsman is satisfied that a ground exists for

terminating a cooperation agreement with a person, the Fair Work

Ombudsman may, instead of terminating the agreement, apply to

the Federal Court, the Federal Circuit and Family Court of

Australia (Division 2) or an eligible State or Territory Court for an

order under subsection (3).

(3) If the court is satisfied that the ground exists, the court may make

one or more of the following orders:

(a) an order directing the person to comply with a term of the

cooperation agreement, or to give or produce correct and

complete information or documents;

(b) an order awarding compensation for loss that a person has

suffered because of matters constituting the ground for

terminating the agreement;

717E Withdrawal from cooperation agreement

A person that is party to a cooperation agreement with the Fair

Work Ombudsman may withdraw from the agreement, but only

with the consent of the Fair Work Ombudsman.

717F Variation of cooperation agreement

The parties to a cooperation agreement may vary the agreement, by

mutual consent and in writing.

717G Relationship with other powers

(1) Whether a cooperation agreement is in force in relation to

particular conduct does not affect:

(a) the power of the Fair Work Ombudsman to accept an

enforceable undertaking under section 715 in relation to the

conduct; or

Schedule 1

Main amendments

Part 14

Wage theft

106

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(b) the power of an inspector to give a notice under section 716

in relation to the conduct; or

an inspector that is not mentioned in subsection 717A(1).

(2) However:

(a) an enforceable undertaking has no effect to the extent that it

is inconsistent with a cooperation agreement; and

(b) a compliance notice has no effect to the extent that an action

specified in the notice is inconsistent with a cooperation

agreement.

This subsection has effect regardless of whether the undertaking or

notice was given before or after the cooperation agreement comes

into force.

232 Subsections 793(1) and (2)

After "for the purposes of this Act", insert "(subject t

subsection (

3A))"

233 After subsection 793(3)

Insert:

Exception

offence relating to failure to pay amounts

(3A) Subsections (1) and (2) do not apply for the purposes of:

(a) subsection 327A(1) (offence for failing to pay amounts as

required); or

(b) a related offence provision, to the extent that the related

offence provision relates to an offence against

subsection 327A(1).

234 At the end of subsection 793(4)

Add ", other than an offence against a provision referred to in

paragraph (3A)(a) or (b) o

f this section"

235 After section 794

Insert:

Main amendments

Schedule 1

Wage theft

Part 14

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

107

794A Liability of Australian governments under civil remedy

provisions

Scope

(1) This section applies for the purposes of applying a civil remedy

provision, or any other provision of this Act in so far as it relates to

a civil remedy provision, in relation to an Australian government.

(2) Each of the following is an

Australian government

(a) the Commonwealth;

(b) a State;

(d) the Northern Territory.

Conduct of Australian governments

(3) Any conduct engaged in on behalf of an Australian government by

an officer, employee or agent (an

official

) of the government

within the scope of the official's actual or apparent authority is

taken, for the purposes of this Act and the procedural rules, to have

been engaged in also by the government.

State of mind of Australian governments

(4) If, for the purposes of this Act or the procedural rules, it is

necessary to establish the state of mind of an Australian

government in relation to particular conduct, it is enough to show:

(a) that the conduct was engaged in by an official of the

government; and

(b) that the official had that state of mind.

Note:

For

state of mind

, see subsection 793(3).

Determining penalty amounts for Australian governments

(5) If an Australian government contravenes a civil remedy provision,

the pecuniary penalty that government may be ordered to pay

under a pecuniary penalty order is the penalty applicable to a body

corporate.

Schedule 1

Main amendments

Part 14

Wage theft

108

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Modifications

(6) This section applies in relation to an Australian government subject

to any modifications prescribed by the regulations.

Meaning of

employee

(7) In this section,

employee

has its ordinary meaning.

794B Liability of the Commonwealth for certain offences

(1) Part 2.5 of the

Criminal Code

applies in relation to the

Commonwealth, for the purposes of an offence against:

(a) subsection 327A(1) (offence for failing to pay amounts as

required) of this Act; or

(b) a related offence provision, to the extent that the related

offence provision relates to an offence against

subsection 327A(1) of this Act;

in the same way as that Part applies in relation to a body corporate.

(2) It so applies:

(a) as if sections 12.4 and 12.5 of the

Criminal Code

were

omitted; and

(b) with the following modifications:

(i) the modifications set out in the following table (subject

to subparagraph (iii));

(ii) such other modifications as are made necessary by the

fact that criminal liability is being imposed on a body

politic rather than a body corporate (subject to

subparagraph (iii));

(iii) any modifications prescribed by the regulations.

Application of Part 2.5 of the

Criminal Code

to the Commonwealth

Item

Part 2.5 of the

Criminal Code

applies as if a reference to ...

were a reference to

...

a body corporate's board of

directors

the governing body of the agency of the

Commonwealth (the

relevant agency

)

whose officer, employee or agent

engaged in conduct constituting a

physical element of the offence

Main amendments

Schedule 1

Wage theft

Part 14

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

109

Application of Part 2.5 of the

Criminal Code

to the Commonwealth

Item

Part 2.5 of the

Criminal Code

applies as if a reference to ...

were a reference to

...

a high managerial agent of a

body corporate

a person who is an officer, employee or

agent of the Commonwealth with duties

of such responsibility that the person's

conduct may fairly be assumed to

represent the policy of the relevant

agency

the corporate culture of a body

corporate

one or more attitudes, policies, rules,

courses of conduct or practices existing

within the relevant agency or a part of

the relevant agency

Determining penalty amounts for the Commonwealth

(3) If the Commonwealth is guilty of an offence against a provision

mentioned in paragraph (1)(a) or (b), the penalty to be imposed on

the Commonwealth is the penalty applicable to a body corporate.

Meaning of

employee

(4) In this section,

employee

has its ordinary meaning.

Meaning of

governing body

(5) The

governing body

of an agency of the Commonwealth is the

body, or group of members of the agency, with primary

responsibility for the governance of the agency.

794C Responsible agencies for Australian governments

(1) If proceedings are brought against:

(a) an Australian government in relation to a contravention of a

civil remedy provision of this Act; or

(b) the Commonwealth for an offence against:

(i) subsection 327A(1) (offence for failing to pay amounts

as required); or

Schedule 1

Main amendments

Part 14

Wage theft

110

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(ii) a related offence provision, to the extent that the related

offence provision relates to an offence against

subsection 327A(1);

the responsible agency in relation to the contravention, or the

commission of the offence, may be specified in any document

initiating, or relating to, the proceedings.

(2) The responsible agency in relation to the contravention, or the

commission of the offence, is entitled to act in the proceedings and,

subject to any relevant rules of court, the procedural rights and

obligations of:

(a) if paragraph (1)(a) applies

the Australian government as the

respondent in the proceedings; or

(b) if paragraph (1)(b) applies

the Commonwealth as the

accused in the proceedings;

are conferred or imposed on the responsible agency.

(3)

With the court's leave, the following person ma

y change the

responsible agency during the proceedings:

(a) if paragraph (1)(a) applies

the person bringing the

proceedings;

(b) if paragraph (1)(b) applies

the person prosecuting the

offence.

(4) The

responsible agency

in relation to a contravention of a civil

remedy provision by an Australian government, or the commission

of an offence by the Commonwealth, is:

(a) for a contravention of a civil remedy provision by an

Australian government

the agency of that government

whose officer, employee or agent engaged in conduct

constituting the contravention; or

(b) for the commission of an offence by the Commonwealth

the agency of the Commonwealth whose officer, employee or

agent engaged in conduct constituting a physical element of

the offence; or

exist

the agency of the Australian government or the

Commonwealth (as the case requires) that is the successor of

that agency; or

Main amendments

Schedule 1

Wage theft

Part 14

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

111

(d) if there is no responsible agency under whichever of

paragraph (a) or (b) applies, or paragraph (c)

the agency of

the Australian government or the Commonwealth (as the case

requires) that the court declares to be the responsible agency.

(5) This section applies in relation to:

(a) an Australian government in relation to a contravention of a

civil remedy provision; and

(b) the Commonwealth in relation to the commission of an

offence;

subject to any modifications that are prescribed by the regulations.

794D Liability of the Commonwealth to pay civil and criminal

penalties

(1) This section applies if:

(a) the Commonwealth contravenes a civil remedy provision and

a court makes a pecuniary penalty order that the

Commonwealth pay all or part of a pecuniary penalty to

itself; or

(b) the Commonwealth is given an infringement notice under the

regulations in relation to an alleged contravention of a civil

remedy provision; or

of the following provisions and the court imposes a

pecuniary penalty on the Commonwealth in respect of the

offence:

(i) subsection 327A(1) (offence for failing to pay amounts

as required);

(ii) a related offence provision, to the extent that the related

offence provision relates to an offence against

subsection 327A(1).

(2) While the Commonwealth is not liable to pay a pecuniary penalty

to itself, it is the Parliament's intention that the Commonwealth

should be notionally liable to pay such a penalty.

(3) The Finance Minister may give such written directions as are

necessary or convenient for carrying out or giving effect to

subsection (2) and, in particular, may give directions in relation to

Schedule 1

Main amendments

Part 14

Wage theft

112

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

the transfer of money from an account operated by the responsible

agency under section 794C for the contravention or for the

commission of the offence to another account operated by the

Commonwealth.

(4) Directions under subsection (3) have effect, and must be complied

with, despite any other Commonwealth law.

Federal Court of Australia Act 1976

236 After paragraph 23AB(4)(a)

Insert:

(ab) an indictable offence against the

Fair Work Act 2009

;

Main amendments

Schedule 1

Definition of employment

Part 15

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

113

Part

15--Definition of employment

Fair Work Act 2009

237 After section 15

Insert:

15AA Determining the ordinary meanings of

employee

and

employer

(1) For the purposes of this Act, whether an individual is an

employee

of a person within the ordinary meaning of that expression, or

whether a person is an

employer

of an individual within the

ordinary meaning of that expression, is to be determined by

ascertaining the real substance, practical reality and true nature

the relationship between the individual and the person.

(2) For the purposes of ascertaining the real substance, practical reality

and true nature of the relationship between the individual and the

person:

(a) the totality of the relationship between the individual and the

person must be considered; and

(b) in considering the totality of the relationship between the

individual and the person, regard must be had not only to the

terms of the contract governing the relationship, but also to

other factors relating to the totality of the relationship

including, but not limited to, how the contract is performed in

practice.

Note:

This section was enacted as a response to the decisions of the High

Court of Australia in

CFMMEU v Personnel Contracting Pty Ltd

[2022] HCA 1 and

ZG Operations Australia Pty Ltd v Jamsek

[2022]

HCA 2.

(3) Subsections (1) and (2) do not apply to the following provisions of

this Act:

(a) Divisions 2A and 2B of Part 1-3;

(b)

Part 3

1, to the extent that Part 3

-1 applies only because of

the operation of section 30G or 30R.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

114

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Part

16--Provisions relating to regulated workers

Division 1

Overarching road transport matters

Fair Work Act 2009

238 After section 40B

Insert:

Part

4--Road transport industry objective and

advisory group

Division

1--Guide to this Part

40C Guide to this Part

This Part deals with special provisions relating to the road transport

industry.

Division 2 sets out the road transport objective.

The Expert Panel for the road transport industry must have regard

to the road transport objective when performing functions and

exercising powers under certain provisions of this Act. These

functions and powers cover both employees and employers and

regulated road transport contractors and road transport businesses.

Division 3 establishes the Road Transport Advisory Group. This

Group includes representatives from the road transport industry. It

has advisory functions under Chapter 3A (in relation to road

transport minimum

standards) and the prioritisation of the FWC's

work so far as it relates to the road transport industry.

Division 4 provides for regulations in relation to the road transport

industry contractual chain.

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

115

Division

2--The road transport objective

40D The road transport objective

In performing a function or exercising a power under this Act, the

Expert Panel for the road transport industry must take into account

the need for an appropriate safety net of minimum standards for

regulated road transport workers and employees in the road

transport industry, having regard to the following:

(a) the need for standards that ensure that the road transport

industry is safe, sustainable and viable;

(b) the need to avoid unreasonable adverse impacts upon the

following:

(i) sustainable competition among road transport industry

participants;

(ii) road transport industry business viability, innovation

and productivity;

(iii) administrative and compliance costs for road transport

industry participants.

This is the

road transport objective

Note:

The matters that must be dealt with by the Expert Panel for the road

transport industry are matters relating to modern awards and road

transport minimum standards orders relating to the road transport

industry (see subsection 617(10B)). The President also has a

discretion to direct the Expert Panel for the road transport industry to

deal with a matter (see subsection 617(10D)).

Division

3--Road Transport Advisory Group

40E Establishment of Road Transport Advisory Group

(1) There is to be a Road Transport Advisory Group.

(2) The function of the Road Transport Advisory Group is to advise

the FWC in relation to matters that relate to the road transport

industry including, but not limited to the following:

(a) the making and varying of modern awards that relate to the

road transport industry;

(b) the making and varying of road transport minimum standards

orders and road transport guidelines;

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

116

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

transport industry;

(d) such other matters as are prescribed by the regulations.

(3) Before advising the FWC in relation to a matter, the Road

Transport Advisory Group must consult any relevant subcommittee

established under section 40G.

(4) The President must consult, and have regard to the views of, the

Road Transport Advisory Group in determining priorities for the

work of the FWC in relation to matters affecting the road transport

industry.

40F Membership of Road Transport Advisory Group

(1) The Road Transport Advisory Group consists of such members as

the Minister from time to time appoints.

(2) In appointing the members of the Road Transport Advisory Group,

the Minister must ensure that the membership consists of persons

who are members of or who are nominated by the following:

(a) an organisation that is entitled to represent the industrial

interests of one or more regulated road transport contractors;

(b) an organisation that is entitled to represent the industrial

interests of one or more road transport businesses.

(3) A member of the Road Transport Advisory Group holds office for

the period specified in the instrument of appointment. The period

must not exceed 3 years.

Note:

A member of the Road Transport Advisory Group is eligible for

reappointment (see subsection 33(4A) of the

Acts Interpretation Act

1901

(4)

The Minister may revoke a person's appointment to the Road

Transport Advisory Group.

(5) The President may give the Road Transport Advisory Group

directions as to the way in which the body is to carry out its

functions.

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

117

(6) The President may appoint a member of the Expert Panel for the

road transport industry to chair the Road Transport Advisory

Group.

40G Road Transport Advisory Group subcommittees

(1) The Road Transport Advisory Group may establish subcommittees

to advise it in relation to matters relevant to the performance of its

functions.

(2) A subcommittee may include persons who are not members of the

Road Transport Advisory Group, but a subcommittee must be

chaired by a member.

Division

4--Regulations relating to the road transport

industry contractual chain

40H Meaning of

road transport industry contractual chain participant

is a

person connected with the road transport industry:

(a) who is:

(i) a national system employer; or

(ii) a national system employee; or

(iii) a constitutional corporation; or

(iv) a regulated road transport contractor; or

(v) a road transport business; or

(b) who satisfies the requirements prescribed by the regulations

for the purposes of this definition.

40J Regulations about the road transport industry contractual chain

(1) The regulations may make provision for and in relation to matters

relating to the road transport industry contractual chain or road

transport industry contractual chain participants.

(2) Without limiting subsection (1), the regulations may do the

following:

(a) empower the FWC to make orders, to be known as road

transport industry contractual chain orders, that confer rights

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

118

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

and impose obligations on road transport industry contractual

chain participants;

(b) specify the matters that a road transport industry contractual

chain order must, may or must not deal with;

industry contractual chain orders;

(d) empower the FWC to deal with disputes between road

transport industry contractual chain participants covered by

road transport industry contractual chain orders;

(e) provide for and in relation to the interaction between road

transport industry contractual chain orders, fair work

instruments and other instruments under this Act or the

regulations;

(f) provide for and in relation to the interaction between the

regulations or road transport industry contractual chain

orders and:

(i) a law of the Commonwealth, a State or a Territory; or

(ii) an instrument made under such a law;

(g) provide for civil penalties for contraventions of the

regulations, which must not exceed the following:

(i) for an individual

60 penalty units;

(ii) for a body corporate

600 penalty units;

(h) empower the Fair Work Ombudsman to enforce road

transport industry contractual chain orders.

(3) Before making regulations under subsection (1), the Minister must

be satisfied that the regulations are for the purposes of promoting

the following:

(a) equitable workplace relations outcomes;

(b) a safe, sustainable and viable road transport industry;

participants;

(d) fairness between road transport industry contractual chain

participants.

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

119

Division 2

Expert Panel for the road transport industry

Fair Work Act 2009

239 At the end of subsection 157(1) (after note 3)

Insert:

Note 4:

If the FWC is making, varying or revoking a modern award that the

President considers might relate to the road transport industry, it must

take into account the road transport objective (see section 40D).

240 After subsection 582(4)

Insert:

(4A) If:

(a) the President gives a direction that 2 or more matters be dealt

with jointly; and

(b) at least one of the matters:

(i) must be dealt with by an Expert Panel constituted to

deal with a matter that relates to the road transport

industry (see subsection 617(10B); or

(ii) is a matter that the President considers might relate to

the road transport industry and has directed be dealt

with by an Expert Panel constituted for the purpose (see

subsection 617(10D);

the direction that the matters be dealt with jointly must require that

all the matters be dealt with by an Expert Panel constituted to deal

with a matter that relates to the road transport industry.

Note:

For the constitution of an Expert Panel for that purpose, see

subsection 620(1E).

(4B) Subsection (4A) does not limit the power of the President to direct

that other matters be dealt jointly with by an Expert Panel.

(4C) The President may give a direction that an FWC member deal with

a matter that the President considers might relate to the road

transport industry, if the FWC member has knowledge of, or

experience in, the road transport industry, whether or not the

President considers that the matter might relate to another industry

or sector.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

120

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

241 After subsection 617(10A)

Insert:

Expert Panel for road transport industry

(10B) The following must be made by an Expert Panel constituted for

that purpose:

(a) a modern award made under Part 2-3 that the President

considers might relate to the road transport industry;

(b) a determination made under subsection 157(1) varying or

revoking a modern award that the President considers might

relate to the road transport industry;

paragraph 536JY(1)(a) or a determination made under

subsection 536KQ(1) varying or revoking a road transport

minimum standards order;

(d) road transport guidelines made under subsection 536KR(1)

or a determination made under subsection 536KZ(1) varying

or revoking road transport guidelines;

(e) such other instruments as are prescribed that the President

considers might relate to the road transport industry.

Note 1:

For the constitution of an Expert Panel for that purpose, see

subsection 620(1E).

Note 2:

The road transport objective is relevant to the functions of an Expert

Panel referred to in this subsection, see section 40D.

President's considerations

(10C) For the purposes of subsection (10B), if the President considers

that a determination or a modern award, or a prescribed instrument,

might relate to the road transport industry, it does not matter if the

President considers that the determination or modern award might

relate to another industry or sector.

(10D) The President may direct that the following matters be dealt with

by an Expert Panel constituted for the purpose:

(a) an employee-like worker minimum standards order or a

determination varying or revoking an employee-like worker

minimum standards order, if the President considers that the

order might relate to the road transport industry or sector;

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

121

(b) employee-like guidelines or a determination varying or

revoking employee-like guidelines, if the President considers

that the guidelines might relate to the road transport industry;

considers might relate to the road transport industry;

whether or not the President considers that the matter might also

relate to another industry or sector.

Note:

For the constitution of an Expert Panel for that purpose, see

subsection 620(1E).

242 At the end of subsection 617AA(4)

Add:

; (e) performing a function or exercising a power under

Chapter 3A;

(f) dealing with a matter that the President considers might

relate to the road transport industry.

243 Subsection 617A(1)

Omit "or (1D)", substitute ", (1D) or (1E)".

244 Subsection 617A(1) (note)

After "remuneration,", insert "the road transport industry,".

245 After subsection 620(1D)

Insert:

Constitution of Expert Panel for the road transport industry

(1E) An Expert Panel constituted under this subsection for a purpose

referred to in subsection 617(10B) or (10D) must include (except

as provided by section 622):

(a) the President, or a Vice President or Deputy President

appointed by the President to be the Chair of the Panel; and

(b) at least one Expert Panel Member or other FWC Member

who has knowledge of, or experience in, the road transport

industry; and

FWC Members as the President considers appropriate.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

122

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

246 Subsection 620(2A)

Omit "or (1D)", substitute ", (1D) or (1E)".

247 Subsection 620(2A)

Omit "or paragraphs

(1D)(b) and

(c)", substitute ", paragraphs

(1D)(b)

and (c) or paragraph (

1E)(b)".

Division 3

Minimum standards for regulated workers

Fair Work Act 2009

248 After section 15A

Insert:

Division

3A--Definitions relating to regulated workers

Subdivision A

General

15B Meaning of

collective agreement

means the following:

(a) an employee-like worker collective agreement (see

subsection 536MK(4));

(b) a road transport collective agreement (see

subsection 536MK(5)).

15C Meaning of

contractor high income threshold

(1) Subject to this section,

the

contractor high income threshold

is the

amount prescribed by, or worked out in the manner prescribed by,

the regulations.

(2) A regulation made for the purposes of subsection (1) has no effect

to the extent that it would have the effect of reducing the amount of

the contractor high income threshold.

(3) If:

(a) in prescribing a manner in which the contractor high income

threshold is worked out, regulations made for the purposes of

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

123

subsection (1) specify a particular matter or state of affairs;

and

(b) as a result of a change in the matter or state of affairs, the

amount of the contractor high income threshold worked out

in that manner would, but for this subsection, be less than it

was on the last occasion on which this subsection did not

apply;

the contractor high income threshold is the amount that it would be

if the change had not occurred.

15D Meaning of

minimum standards guidelines

Minimum standards guidelines

means the following:

(a) employee-like worker guidelines (see subsection 536KR(2));

(b) road transport guidelines (see subsection 536KR(3)).

15E Meaning of

minimum standards order

means the following:

(a) an employee-like worker minimum standards order (see

subsection 536JY(2));

(b) a road transport minimum standards order (see

subsection 536JY(3)).

15F Meaning of

regulated business

A person is a

regulated business

if:

(a) the person is a digital labour platform operator (see

section 15M); or

(b) the person is a road transport business (see subsection 15R).

15G Meaning of

regulated worker

A person is a

regulated worker

if:

(a) the person is an employee-like worker (see section 15P); or

(b) the person is a regulated road transport contractor (see

section 15Q).

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

124

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

15H Meaning of

services contract

General meaning

(1) A

services contract

is a contract for services:

(a) that relates to the performance of work under the contract by

an individual; and

(b) that has the requisite constitutional connection specified in

subsection (2) or (3).

Note:

Conditions or collateral arrangements relating to a services contract

may be taken to be part of the services contract: see subsection (4).

The requisite constitutional connection

(2) A contract for services has the requisite constitutional connection

if:

(a) at least one party to the contract is:

(i) a constitutional corporation; or

(ii) the Commonwealth or a Commonwealth authority; or

(iii) a body corporate incorporated in a Territory in

Australia; or

(b) one or more of the following subparagraphs is satisfied:

(i) the work concerned is wholly or principally to be

performed in a Territory in Australia;

(ii) the contract was entered into in a Territory in Australia;

(iii) at least one party to the contract is a natural person who

is resident in, or a body corporate that has its principal

place of business in, a Territory in Australia;

(iv) the work concerned is done in the course of

constitutional trade or commerce.

Note:

In this context, Australia includes Norfolk Island, the Territory of

Christmas Island and the Territory of Cocos (Keeling) Islands (see the

definition of

Australia

in section 12).

(3) For the purposes of Part 3A-2 (minimum standards for regulated

workers), Part 3A-3 (unfair deactivation and unfair termination)

and Part 3A-4 (collective agreements) to the extent to which those

Parts relate to digital platform work, a contract for services also has

the requisite constitutional connection if the contract was arranged

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

125

or facilitated through or by means of a digital labour platform,

where the operator of the digital labour platform is:

(a) a constitutional corporation; or

(b) the Commonwealth or a Commonwealth authority; or

(d) a natural person who is resident in, or a body corporate that

has its principal place of business in, a Territory in Australia.

Note:

In this context, Australia includes Norfolk Island, the Territory of

Christmas Island and the Territory of Cocos (Keeling) Islands (see the

definition of

Australia

in section 12).

Conditions and collateral arrangements

(4) A condition or collateral arrangement that relates to a services

contract is taken to be part of that services contract if, were the

condition or arrangement itself a contract for services, it would

have the requisite constitutional connection.

15J Prospective regulated workers

A reference to a regulated worker, in relation to a services contract,

includes a reference to a person who may become a regulated

worker for a services contract.

15K Effect of Chapter in determining whether a person is an

employee or an employer

For the purposes of ascertaining the real substance, practical reality

and true nature of the relationship between an individual and a

person for the purposes of determining:

(a) whether the individual is an

employee

of the person within

the ordinary meaning of that expression; or

(b) whether the person is an

employer

of the individual within

the ordinary meaning of that expression;

the effect upon the relationship of a minimum standards order,

minimum standards guidelines or a collective agreement applying

to, or covering, the individual or the person is to be disregarded.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

126

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Subdivision B

Digital platform work

15L Meaning of

digital labour platform

(1) A

digital labour platform

means an online enabled application,

website or system operated to arrange, allocate or facilitate the

provision of labour services, where:

(a) the operator of the application, website or system:

(i) engages independent contractors directly or indirectly

through or by means of the application, website or

system; or

(ii) acts as an intermediary for or on behalf of more than

one distinct but interdependent sets of users who

interact with the independent contractors or the operator

via the application, website or system; and

(b) the operator of the application, website or system processes

aggregated payments referable to the work performed by the

independent contractors.

(2) A

digital labour platform

also means an online enabled

application, website or system that is prescribed by the regulations

for the purposes of this subsection.

(3) A

digital labour platform

does not include an online application,

website or system prescribed by the regulations for the purposes of

this subsection.

(4) For the purposes of this section:

(a) an online application, website or system may be specified by

name or by inclusion in a specified class or specified classes;

(b) an online application, website or system may be specified in

respect of all forms of digital platform work, or in respect of

specified forms of digital platform work.

15M Meaning of

digital labour platform operator

digital labour platform

operator

means the operator of a digital

labour platform, being an operator that enters into or facilitates a

services contract under which work is performed by employee-like

workers.

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

127

15N Meaning of

digital platform work

(1)

Digital platform work

means:

(a) work performed by an independent contractor, where:

(i) the work is performed under a services contract through

or by means of a digital labour platform, or the services

contract under which the work is performed was

arranged or facilitated through or by means of a digital

labour platform; and

(ii) payment is made for that work; or

(b) work prescribed by the regulations for the purposes of this

subsection.

(2)

Digital platform work

does not include work prescribed by the

regulations for the purposes of this subsection.

(3) For the purposes of paragraph (1)(b) and subsection (2), work may

be specified by name or by inclusion in a specified class or

specified classes.

15P Meaning of

employee-like worker

(1) A person is an

employee-like worker

if:

(a) the person is:

(i) an individual who is a party to a services contract in

their capacity as an individual (other than as a

principal), and performs work under the contract; or

(ii) if a body corporate is a party to a services contract

(other than as a principal)

an individual who is a

director of the body corporate, or a member of the

family of a director of a body corporate, and performs

work under the contract; or

(iii) if a trustee of a trust is a party to a services contract in

their capacity as a trustee (other than as a principal)

individual who is a trustee of the same trust and

performs work under the contract, whether or not the

individual is a party to the contract; or

(iv) if a partner in a partnership is a party to a services

contract in their capacity as a partner (other than as a

principal)

an individual who is a partner in the same

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

128

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

partnership and performs work under the contract,

whether or not the individual is a party to the contract;

and

(b) the person performs all, or a significant majority, of the work

to be performed under the services contract; and

is digital platform work; and

(d) the person does not perform any work under the services

contract as an employee; and

(e) the person satisfies one or more of the following:

(i) the person has low bargaining power in negotiations in

relation to the services contract under which the work is

performed;

(ii) the person receives remuneration at or below the rate of

an employee performing comparable work;

(iii) the person has a low degree of authority over the

performance of the work;

(iv) the person has such other characteristics as are

prescribed by the regulations.

(2) In this Part, a reference to an independent contractor includes a

reference to an individual who is an employee-like worker within

the meaning of subsection (1).

(3) Regulations made for the purposes of subparagraph (1)(e)(iv) may

specify that a person must have all or only one or some of the

characteristics prescribed.

(4) For the purposes of determining whether an individual satisfies the

criteria specified in paragraph (1)(e), the effect of a minimum

standards order, minimum standards guidelines or a collective

agreement applying to, or covering, the individual is to be

disregarded.

Subdivision C

Road transport industry

15Q Meaning of

regulated road transport contractor

(1) A person is a

regulated road transport contractor

if:

(a) the person is:

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

129

(i) an individual who is a party to a services contract in

their capacity as an individual (other than as a

principal), and performs work under the contract; or

(ii) if a body corporate is a party to a services contract

(other than as a principal)

an individual who is a

director of the body corporate, or a member of the

family of a director of a body corporate, and performs

work under the contract; or

(iii) if a trustee of a trust is a party to a services contract in

their capacity as a trustee (other than as a principal)

individual who is a trustee of the same trust and

performs work under the contract, whether or not the

individual is a party to the contract; or

(iv) if a partner in a partnership is a party to a services

contract in their capacity as a partner (other than as a

principal)

an individual who is a partner in the same

partnership and performs work under the contract,

whether or not the individual is a party to the contract;

and

(b) the person performs all, or a significant majority, of the work

to be performed under the services contract; and

contract as an employee; and

(d) the work performed under the services contract is work in the

road transport industry; and

(e) the person is not an employee-like worker who performs

work in the road transport industry under the services

contract.

(2) In this Part, a reference to an independent contractor includes a

reference to an individual who is a regulated road transport

contractor within the meaning of subsection (1).

15R Meaning of

road transport business

(1) A person is a

road transport business

if the person:

(a) receives services under a services contract, where the

services contract provides for the performance of work in the

road transport industry; or

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

130

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(b) is a constitutional corporation, or is included in a class of

constitutional corporations, prescribed by the regulations for

the purposes of this paragraph.

(2) For the purposes of paragraph (1)(b), a business or undertaking

may be specified by name or by inclusion in a specified class or

specified classes.

15S Meaning of

road transport industry

(1) The

road transport industry

means:

(a) the

road transport and distribution industry

within the

meaning of the Road Transport and Distribution Award 2020

as in force on 1 July 2024, with such modifications (if any)

as are prescribed by regulations for the purposes of this

paragraph; and

(b) the

long distance operations in the private road transport

industry

within the meaning of the Road Transport (Long

Distance Operations) Award 2020 as in force on 1 July 2024,

with such modifications (if any) as are prescribed by

regulations for the purposes of this paragraph; and

waste management industry

within the meaning of the

Waste Management Award 2020 as in force on 1 July 2024,

with such modifications (if any) as are prescribed by

regulations for the purposes of this paragraph; and

(d) the

cash in transit industry

within the meaning of the

Transport (Cash in Transit) Award 2020 as in force on 1 July

2024, with such modifications (if any) as are prescribed by

regulations for the purposes of this paragraph; and

(e) the

passenger vehicle transportation industry

within the

meaning of clause 4.2 of the Passenger Vehicle

Transportation Award 2020, not including paragraph 4.2(c)),

as in force on 1 July 2024, with such modifications (if any)

as are prescribed by regulations for the purposes of this

paragraph; and

(f) any other industry (however described) prescribed by the

regulations for the purposes of this paragraph.

(2) For the purposes of paragraph (1)(f), the regulations may prescribe

an industry by applying, adopting or incorporating any matter

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

131

contained in a modern award as in force or existing from time to

time.

249 After Chapter 3

Insert:

Chapter

3A--Minimum standards for

regulated workers

Part

1--Core provisions for this Chapter

Division

1--Introduction

536J Guide to this Part

This Part is about the coverage and operation of the provisions of

this Chapter.

Division 2 sets out when minimum standards orders, minimum

standards guidelines and collective agreements cover regulated

workers and regulated businesses.

Division 3 specifies the rules relating to the interaction of the

provisions of this Chapter with State and Territory laws.

Division 4 specifies rules about certain retrospective variations.

536JA Meaning of employee and employer

In this Part,

employee

and

employer

have their ordinary meanings.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

132

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Division

2--Provisions relating to coverage and operation

of minimum standards orders, minimum

standards guidelines and collective agreements

Subdivision A

Coverage and operation of minimum standards

orders and guidelines

536JB Contravening a minimum standards order

A person must not contravene a term of a minimum standards

order.

Note 1:

This section is a civil remedy provision (see Part 4-1).

Note 2:

A person does not contravene a term of a minimum standards order

unless the order applies to the person: see subsection 536JC(1).

536JC The significance of a minimum standards order applying to a

person

(1) A minimum standards order does not impose obligations on a

person, and a person does not contravene a term of a minimum

standards order, unless the order applies to the person.

(2) A minimum standards order does not give a person an entitlement

unless the order applies to the person.

536JD When a minimum standards order

applies

to a person

When a minimum standards order

applies

to a regulated worker

(1) A minimum standards order

applies

to a regulated worker if:

(a) the minimum standards order covers the regulated worker;

and

(b) the minimum standards order is in operation; and

the minimum standards order does not apply to the regulated

worker.

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

133

When an employee-like minimum standards order

applies

to a

digital labour platform operator

(2) An employee-like minimum standards order

applies

to a digital

labour platform operator if:

(a) the employee-like minimum standards order covers the

digital labour platform operator; and

(b) the employee-like minimum standards order covers

employee-like workers; and

(i) directly or indirectly engages, under services contracts,

employee-like workers covered by the employee-like

minimum standards order who perform work through or

by means of a digital labour platform operated by the

digital labour platform operator; or

(ii) arranges or facilitates services contracts through or by

means of a digital labour platform operated by the

digital labour platform operator, under which work is

performed by employee-like workers covered by the

employee-like minimum standards order; and

(d) the employee-like minimum standards order is in operation;

and

(e) no other provision of this Act provides, or has the effect, that

the employee-like minimum standards order does not apply

to the digital labour platform operator.

When a road transport minimum standards order

applies

to a road

transport business

(3) A road transport minimum standards order

applies

to a road

transport business if:

(a) the road transport minimum standards order covers the road

transport business; and

(b) the road transport minimum standards order covers regulated

road transport contractors; and

services contract of a regulated road transport contractor

covered by the road transport minimum standards order; and

(d) the road transport minimum standards order is in operation;

and

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

134

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(e) no other provision of this Act provides, or has the effect, that

the road transport minimum standards order does not apply to

the road transport business.

Minimum standards order applies in relation to services contracts

(4) A reference in this Act to a minimum standards order applying to a

regulated worker is a reference to the order applying to the

regulated worker in relation to a services contract.

536JE When a minimum standards order

covers

a regulated worker

or a regulated business

(1) A minimum standards order

covers

a regulated worker or a

regulated business if the order is expressed to cover the regulated

worker or the regulated business.

Effect of other provisions of this Act, FWC orders or court orders

on coverage

(2) A minimum standards order also

covers

a regulated worker or a

regulated business if any of the following provides, or has the

effect, that the order covers the regulated worker or the regulated

business:

(a) a provision of this Act;

(b) an FWC order made under a provision of this Act;

(3) Despite subsections (1) and (2), a minimum standards order does

not cover a regulated worker or a regulated business if any of the

following provides, or has the effect, that the order does not cover

the regulated worker or the regulated business:

(a) a provision of this Act;

(b) an FWC order made under a provision of this Act;

Minimum standards orders that have ceased to operate

(4) Despite subsections (1) and (2), a minimum standards order that

has ceased to operate does not cover a regulated worker or a

regulated business.

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

135

536JF When a minimum standards order is in operation

When a minimum standards order comes into operation

(1) A minimum standards order comes into operation on the day

specified in the order.

(2) The specified day must not be earlier than the day on which the

minimum standards order is made.

(3) The specified day for a road transport minimum standards order

must not be earlier than 24 months after the relevant notice of

intent for the order was published.

When a determination varying or revoking a minimum standards

order comes into operation

(4) A determination varying or revoking a minimum standards order

comes into operation on the day specified in the determination.

(5) The specified day must not be earlier than the day on which the

determination is made, unless:

(a) the determination is made under subsection 536KQ(3); or

(b) the FWC is satisfied that there are exceptional circumstances

that justify specifying an earlier day.

Minimum standards orders operate until revoked

(6) A minimum standards order continues in operation until it is

revoked.

(7) The

relevant notice of intent

for a road transport minimum

standards order is the notice of intent published under

subsection 536KB(1) at the same time as the draft of the road

transport minimum standards order is made.

536JG When minimum standards guidelines

cover

a regulated

worker or a regulated business

(1) Minimum standards guidelines

cover

a regulated worker or a

regulated business if the guidelines are expressed to cover the

regulated worker or the regulated business.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

136

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Effect of other provisions of this Act, FWC orders or court orders

on coverage

(2) Minimum standards guidelines also

cover

a regulated worker or a

regulated business if any of the following provides, or has the

effect, that the guidelines cover the regulated worker or the

regulated business:

(a) a provision of this Act;

(b) an FWC order made under a provision of this Act;

(3) Despite subsections (1) and (2), minimum standards guidelines do

not cover a regulated worker or a regulated business if any of the

following provides, or has the effect, that the guidelines do not

cover the regulated worker or the regulated business:

(a) a provision of this Act;

(b) an FWC order made under a provision of this Act;

Minimum standards guidelines that have ceased to operate

(4) Despite subsections (1) and (2), minimum standards guidelines that

have ceased to operate do not cover a regulated worker or a

regulated business.

536JH When minimum standards guidelines are in operation

When minimum standards guidelines come into operation

(1) Minimum standards guidelines come into operation on the day

specified in the guidelines.

(2) The specified day must not be earlier than the day on which the

minimum standards guidelines are made.

When a determination varying or revoking minimum standards

guidelines comes into operation

(3) A determination varying or revoking minimum standards

guidelines comes into operation on the day specified in the

determination.

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

137

(4) The specified day must not be earlier than the day on which the

determination is made.

Minimum standards guidelines operate until revoked

(5) Minimum standards guidelines continue in operation until they are

revoked.

Subdivision B

Coverage and operation of collective

agreements

536JJ Contravening a collective agreement

A person must not contravene a term of a collective agreement.

Note 1:

This section is a civil remedy provision (see Part 4-1).

Note 2:

A person does not contravene a term of a collective agreement unless

the agreement applies to the person: see section 536JK.

536JK The significance of a collective agreement applying to a

person

(1) A collective agreement does not impose obligations on a person,

and a person does not contravene a term of a collective agreement,

unless the agreement applies to the person.

(2) A collective agreement does not give a person an entitlement

unless the agreement applies to the person.

536JL When a collective agreement

applies

to a person

When a collective agreement

applies

to a regulated worker

(1) A collective agreement

applies

to a regulated worker if:

(a) the collective agreement covers the regulated worker; and

(b) the collective agreement is in operation; and

the collective agreement does not apply to the regulated

worker.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

138

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

When a collective agreement

applies

to a regulated business

(2) A collective agreement

applies

to a regulated business if:

(a) the collective agreement covers the regulated business; and

(b) the collective agreement covers regulated workers; and

(i) the digital labour platform operator directly or indirectly

engages, under services contracts, employee-like

workers covered by the collective agreement who

perform work through or by means of a digital labour

platform operated by the digital platform operator; or

(ii) the digital labour platform operator arranges or

facilitates services contracts, through or by means of a

digital labour platform operated by the digital platform

operator, under which work is performed by

employee-like workers covered by the collective

agreement; and

(d) if the regulated business is a road transport business

the

road transport business receives services under services

contracts under which the regulated road transport

contractors perform work; and

(e) no other provision of this Act provides, or has the effect, that

the collective agreement does not apply to the regulated

business.

Collective agreement applies in relation to services contracts

(3) A reference in this Act to a collective agreement applying to a

regulated worker is a reference to the collective agreement

applying to the regulated worker in relation to a services contract.

536JM When a collective agreement

covers

a regulated worker, a

regulated business or an organisation

(1) A collective agreement

covers

a regulated worker, a regulated

business or an organisation if the agreement is expressed to cover

the regulated worker, the regulated business or the organisation.

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

139

Effect of other provisions of this Act, FWC orders or court orders

on coverage

(2) A collective agreement also

covers

a regulated worker, a regulated

business or an organisation if any of the following provides, or has

the effect, that the agreement covers the regulated worker, the

regulated business or the organisation:

(a) a provision of this Act;

(b) an FWC order made under a provision of this Act;

(3) Despite subsections (1) and (2), a collective agreement does not

cover a regulated worker, a regulated business or an organisation if

any of the following provides, or has the effect, that the agreement

does not cover the regulated worker, the regulated business or the

organisation:

(a) a provision of this Act;

(b) an FWC order made under a provision of this Act;

Collective agreements that have ceased to operate

(4) Despite subsections (1) and (2), a collective agreement that has

ceased to operate does not cover regulated worker, a regulated

business or an organisation.

536JN When a collective agreement is in operation

When a collective agreement comes into operation

(1) A collective agreement comes into operation:

(a) on the day that is it is registered under subsection 536MS(1);

(b) if a later day is specified in the collective agreement

on that

later day.

When a collective agreement is terminated

(2) A collective agreement is terminated:

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

140

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(a) at the end of the period of operation specified in the

collective agreement as required by paragraph 536MS(3)(a);

(b) if an earlier day is specified in a termination notice in relation

to the collective agreement that is registered under

subsection 536MW(1)

on that day.

Collective agreements operate until terminated

(3) A collective agreement continues in operation until it is terminated.

Interaction with minimum standards orders, etc.

(4) A term of a collective agreement has no effect in relation to a

regulated worker in respect of a matter to the extent that the term is

detrimental to the regulated worker in any respect, when compared

to a minimum standards order or a law of a State or Territory that

applies to the regulated worker in relation to that matter.

Division

3--Exclusion of certain State and Territory laws

536JP Exclusion of certain State and Territory laws

(1) For the purposes of this Chapter, the rights, entitlements,

obligations and liabilities of a regulated worker, a regulated

business or a party to a services contract are not affected by a law

of a State or Territory to the extent that the law would otherwise do

one or more of the following:

(a) take or deem the regulated business or regulated worker to be

an employer or employee, or otherwise treat the regulated

business or regulated worker as if the regulated business or

regulated worker, as the case requires, were an employer or

employee, for the purposes of a law that relates to one or

more workplace relations matters (or provide a means for the

regulated business or regulated worker to be so taken,

deemed or treated);

(b) confer or impose rights, entitlements, obligations or liabilities

on regulated business or regulated worker in relation to

matters that, in an employment relationship, would be

workplace relations matters (or provide a means for rights,

entitlements, obligations or liabilities in relation to such

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

141

matters to be conferred or imposed on the regulated business

or regulated worker);

expressly provide

for a court, commission or tribunal to do any of the following

in relation to a services contract on an unfairness ground:

(i) make an order or determination (however described)

setting aside, or declaring to be void or otherwise

unenforceable, all or part of the services contract;

(ii) make an order or determination (however described)

amending or varying all or part of the services contract.

Note 1:

For the meaning of

workplace relations matter

, see section 536JQ.

Note 2:

For the meaning of

unfairness ground

, see section 536JR.

(2) The rights, entitlements, obligations and liabilities of a regulated

business, a regulated worker or a party to a services contract are

not affected by a law of a State or Territory that is specified in

regulations made for the purposes of this subsection, to the extent

that the law is so specified.

(3) Subsection (1) does not apply in relation to:

(a) a law of a State or Territory, to the extent that the law deals

with matters relating to outworkers (including entry of a

representative of a trade union to premises for a purpose

connected with outworkers), other than matters mentioned in

paragraph (1)(c); or

(b) any of the following laws:

(i) Chapter 6 of the

Industrial Relations Act 1996

(NSW)

(and any other provision of that Act to the extent that it

relates to, or has effect for the purposes of, a provision

of Chapter 6);

(ii) the

Owner Drivers and Forestry Contractors Act 2005

(Vic.); or

made for the purposes of this paragraph, to the extent that the

law is so specified.

(4) To avoid doubt, subsection (2) has effect even if a law specified in

regulations made under that subsection:

(a) is a law referred to in paragraph (3)(a) or (3)(b); or

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

142

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(b) deals with matters that, because of subsection 536JQ(2), are

not workplace relations matters.

536JQ What are

workplace relations matters

(1) Subject to subsection (2), for the purposes of this Chapter,

workplace relations matter

means any of the following matters:

(a) remuneration, allowances or other amounts payable to

employees;

(b) leave entitlements of employees;

(d) enforcing or terminating contracts of employment;

(e) making, enforcing or terminating agreements (not being

contracts of employment) determining terms and conditions

of employment;

(f) disputes between employees and employers, or the resolution

of such disputes;

(g) industrial action by employees or employers;

(h) any other matter that is substantially the same as a matter that

relates to employees or employers and that is dealt with by or

under:

(i) this Act; or

(ii) the

Fair Work (Transitional Provisions and

Consequential Amendments) Act 2009

; or

(iii) a State or Territory industrial law;

unless the matter is specified in regulations made for the

purposes of this paragraph;

(i) any other matter specified in regulations made for the

purposes of this paragraph.

(2) For the purposes of subsection (1), none of the following is a

workplace relations matter

(a) prevention of discrimination or promotion of equal

employment opportunity, but only if the State or Territory

law concerned is neither a State or Territory industrial law

nor contained in such a law;

(b) superannuation;

(c)

workers' compensation;

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

143

(d) occupational health and safety;

(e) child labour;

(f) the observance of a public holiday, except the rate of

payment of an employee for the public holiday;

(g) deductions from wages or salaries;

(h) industrial action affecting essential services;

(i) attendance for service on a jury;

(j) professional or trade regulation;

(k) consumer protection;

(l) taxation;

(m) any other matter specified in regulations made for the

purposes of this paragraph.

536JR What is an

unfairness ground

(1) Subject to subsection (2), for the purposes of this Chapter, each of

the following grounds is an

unfairness ground

in relation to a

services contract:

(a) the services contract is unfair;

(b) the services contract is harsh or unreasonable;

(d) the services contract is against the public interest;

(e) the services contract is designed to, or does, avoid the

provisions of:

(i) this Act; or

(ii) the

Fair Work (Transitional Provisions and

Consequential Amendments) Act 2009

; or

(iii) a State or Territory industrial law; or

(iv) an award, agreement or other instrument made under a

law referred to in subparagraph (i), (ii) or (iii);

(f) the services contract provides for remuneration at a rate that

is, or is likely to be, less than the rate of remuneration for an

employee performing similar work;

(g) any other ground that is substantially the same as a ground

specified in any of paragraphs (a) to (f);

(h) any other ground specified in regulations made for the

purposes of this paragraph.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

144

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(2) A ground specified in subsection (1) is not an

unfairness ground

in relation to a services contract to the extent that the ground

relates to matters that, because of subsection 536JQ(2), are not

workplace relations matters.

536JS Interaction of minimum standards orders with State and

Territory laws

(1) A minimum standards order prevails over a law of a State or

Territory, to the extent of any inconsistency.

(2) Despite subsection (1), a term of a minimum standards order

applies subject to the following:

(a) a law of a State or Territory prescribed by the regulations;

(b) a law of a State or Territory that provides for rights or

remedies by reference to a law prescribed for the purposes of

paragraph (a);

made pursuant to or for the purposes of a law referred to in

paragraph (a) or (b).

536JT Authorisation of conduct for the purposes of the

Competition

and Consumer Act 2010

Conduct in accordance with order or collective agreement

(1) For the purposes of subsection 51(1) of the

Competition and

Consumer Act 2010

, and the Competition Code within the meaning

of that Act, anything done in accordance with a minimum

standards order, minimum standards guidelines or a collective

agreement by a person or entity covered by the order or agreement

is specified in and specifically authorised by this Act.

Making a collective agreement

(2) For the purposes of subsection 51(1) of the

Competition and

Consumer Act 2010

, and the Competition Code within the meaning

of that Act, making a collective agreement by a person or entity is

specified in and specifically authorised by this Act.

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

145

Conduct in preparation for or incidental to making or applying for

registration of a collective agreement

(3) For the purposes of subsection 51(1) of the

Competition and

Consumer Act 2010

, and the Competition Code within the meaning

of that Act, anything done by a person or entity in preparation for,

or incidental to, making, or applying for registration of, a collective

agreement is specified in and specifically authorised by this Act.

Certain conduct not protected

(4) Despite subsections (1), (2) and (3), conduct referred to in those

subsections is not specified in or specifically authorised by this Act

if the conduct is:

(a) making a contract or arrangement, or arriving at an

understanding, that is or contains a cartel provision that

satisfies the purpose condition in either

paragraph 45AD(3)(a) or 45AD(3)(b) of the

Competition and

Consumer Act 2010

or the Competition Code within the

meaning of that Act; or

(b) boycott conduct within the meaning of subsection 87AA(2)

of the

Competition and Consumer Act 2010

or the

Competition Code within the meaning of that Act.

Division

4--Other general matters

536JU Special rules relating to retrospective variations of minimum

standards orders

(1) This section applies if a determination varying a minimum

standards order has a retrospective effect because it comes into

operation on a day before the day on which the determination is

made.

Note:

Subsection 536JF(5) sets out when a determination can come into

operation on a day before it is made.

No creation of liability to pay pecuniary penalty for past conduct

(2) If:

(a) a person engaged in conduct before the determination was

made; and

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

146

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(b) but for the retrospective effect of the determination, the

conduct would not have contravened a term of the minimum

standards order;

a court must not order the person to pay a pecuniary penalty under

Division 2 of Part 4-1 in relation to the conduct, on the grounds

that the conduct contravened a term of the order.

Note:

This subsection does not affect the powers of a court to make other

kinds of orders under Division 2 of Part 4-1.

Part

2--Minimum standards for regulated

workers

Division

1--Introduction

536JV Guide to this Part

This Part is about setting minimum standards for certain regulated

workers, specifically, employee-like workers and regulated road

transport contractors.

Division 2 of this Part sets out the minimum standards objective to

which the FWC must have regard when performing a function or

exercising a power under this Part.

Division 3 empowers the FWC to make minimum standards orders

for regulated workers, which set minimum standards to which they

are entitled in relation to certain matters including payment terms

and working time.

Division 4 empowers the FWC to make minimum standards

guidelines for regulated workers.

Division 5 provides for regulations to be made in relation to

internal review of certain decisions.

536JW Meaning of employee and employer

In this Part,

employee

and

employer

have their ordinary meanings.

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

147

Division

2--The minimum standards objective

536JX The minimum standards objective

In performing a function or exercising a power under this Part, the

FWC must take into account the need for an appropriate safety net

of minimum standards for regulated workers, having regard to the

following:

(a) the need for standards that:

(i) are clear and simple; and

(ii) are fair and relevant; and

(iii) recognise the perspectives of regulated workers,

including their skills, the value of the work they perform

and their preferences about their working arrangements;

and

(iv) do not change the form of the engagement of regulated

workers from independent contractor to employee; and

(v) do not give preference to one business model or

working arrangement over another; and

(vi) are tailored to the relevant industry, occupation or sector

and the relevant business models; and

(vii) are tailored to the type of work, working arrangements

and regulated worker preferences;

(b) in addition to the other matters provided for in this

subsection, the need for standards that deal with minimum

rates of pay that:

(i) take into account all necessary costs for regulated

workers covered by a minimum standards order or

minimum standards guidelines; and

(ii) compensate regulated workers covered by a minimum

standards order or minimum standards guidelines in

relation to their pay and conditions compared to

employees performing comparable work; and

(iii) do not change the form of the engagement of regulated

workers;

following:

(i) sustainable competition among industry participants;

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

148

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(ii) business viability, innovation and productivity;

(iii) administrative and compliance costs for industry

participants;

(iv) the national economy;

(d) the need to consider other orders or instruments (however

described) made under this Chapter.

This is the

minimum standards objective

Division

3--Minimum standards orders

Subdivision A

General matters

536JY Minimum standards orders

(1) The FWC may make an order (a

minimum standards order

) that

sets standards for:

(a) employee-like workers; or

(b) regulated road transport contractors.

(2) A minimum standards order for employee-like workers is an

employee-like worker minimum standards order

(3) A minimum standards order for regulated road transport

contractors is a

road transport minimum standards order

Note:

The FWC must be constituted by an Expert Panel for the purposes of

making a road transport minimum standards order (see

subsection 617(10B)).

(4) The FWC may make a minimum standards order under this

section:

(a) on its own initiative; or

(b) on application under subsection 536JZ(1).

536JZ Applications for minimum standards orders

(1) Any of the following may apply to the FWC for the making of a

minimum standards order:

(a) an organisation that is entitled to represent the industrial

interests of one or more regulated workers who would be

covered by the proposed minimum standards order;

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

149

(b) an organisation that is entitled to represent the industrial

interests of one or more of the regulated businesses that

would be covered by the proposed minimum standards order;

minimum standards order;

(d) the Minister.

Note:

An Expert Panel can hear applications under this Act for the road

transport industry together: see subsection 582(4).

Matters to be specified in an application

(2) An application under subsection (1) must specify whether it is an

application for an employee-like worker minimum standards order

or a road transport minimum standards order.

(3) An application for the making of a minimum standards order must

specify the class of regulated workers to be covered by the order.

(4) Without limiting the way in which a class may be described for the

purposes of subsection (3), the class may be described by reference

to a particular industry or sector, or part of an industry or sector, or

particular kinds of work.

Subdivision B

Initial matter to be considered for

employee-like worker minimum standards orders

536K Initial matter to be considered for employee-like worker

minimum standards orders

(1) This section applies if:

(a) an application is made for an employee-like worker

minimum standards order under subsection 536JZ(1) or for a

variation of an employee-like worker minimum standards

order under section 536KP; or

(b) the FWC is considering making or varying an employee-like

worker minimum standards order on its own initiative.

(2) Before making a decision under section 536KG, the FWC must

consider whether, on the whole, the persons included in the class of

employee-like worker to be covered by the minimum standards

order are employee-like workers.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

150

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(3) If the FWC is not satisfied that, on the whole, the persons included

in the class of employee-like workers to be covered by the

minimum standards order, or the order as proposed to be varied,

are employee-like workers, the FWC must decide to refuse to

consider the application, or not to make or vary the order, as the

case requires.

Subdivision C

Matters relating to road transport minimum

standards orders

536KA Particular matters FWC must take into account in making a

decision on a road transport minimum standards order

(1) This section applies if:

(a) an application is made for a road transport minimum

standards order under subsection 536JZ(1) or for a variation

of a road transport minimum standards order under

section 536KP; or

(b) the FWC is considering making or varying a minimum

standards order on its own initiative.

(2) The FWC:

(a) must not make the road transport minimum standards order

unless there has been genuine engagement with the parties to

be covered; and

(b) must not make the road transport minimum standards order

unless the Road Transport Advisory Group has been

consulted; and

unless the consultation process set out in Subdivision D has

been followed; and

(d) must have regard to the commercial realities of the road

transport industry; and

(e) must be satisfied that making the road transport minimum

standards order will not unduly affect the viability and

competitiveness of owner drivers or other similar persons.

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

151

Subdivision D

Consultation process for road transport

minimum standards orders

536KB FWC to prepare and publish a draft of a road transport

minimum standards order

(1) Before making a road transport minimum standards order, the

FWC must:

(a) publish a notice (a

notice of intent

) stating that the FWC

proposes to make a road transport minimum standards order;

and

(b) publish a draft of the proposed road transport minimum

standards order.

(2) The FWC must publish the notice of intent and the draft of the road

transport minimum stan

dards order on the FWC's website and by

any other means the FWC considers appropriate.

536KC Affected persons and bodies to have a reasonable

opportunity to make and comment on a draft road

transport minimum standards order

(1) The FWC must ensure that affected persons have a reasonable

opportunity to make written submissions to the FWC for its

consideration in relation to the draft of a road transport minimum

standards order published under subsection 536KB(2).

(2) The FWC must publish submissions made to the FWC.

(3) However, if a submission made by a person or body includes

information that is claimed by the person or body to be confidential

or commercially sensitive, and the FWC is satisfied that the

information is confidential or commercially sensitive, the FWC:

(a) may decide not to publish the information; and

(b) may instead publish:

(i) a summary of the information which contains sufficient

detail to allow a reasonable understanding of the

substance of the information (without disclosing

anything that is confidential or commercially sensitive);

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

152

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(ii) if the FWC considers that it is not practicable to prepare

a summary that would comply with subparagraph (i)

statement that confidential or commercially sensitive

information in the submission has not been published.

(4) The publishing of material under subsections (2) and (3) must be

on the FWC's website and by any other means the FWC considers

appropriate.

(5) A reference in this Act (other than in this section) to a submission

under this section includes a reference to a summary or statement

referred to in paragraph (3)(b).

(6) For the purposes of subsection (1), an

affected person

, in relation

to a draft minimum standards order published under

paragraph 536KB(1)(a), is a person likely to be affected by the

making of a road transport minimum standards order based on the

draft.

536KD Hearings in relation to draft order

The FWC may, but is not required to, hold a hearing in relation to a

draft road transport minimum standards order.

536KE Finalising draft order

(1) The FWC may make any changes it thinks appropriate to a draft

road transport minimum standards order.

(2) If changes made under subsection (1) are significant, the FWC

must:

(a) decide not to make the road transport minimum standards

order based on the draft; and

(b) publish a subsequent notice of intent under

subsection 536KB(1) in relation to the revised draft road

transport minimum standards order, and publish the revised

draft; and

revised draft road transport minimum standards order (with

the period of consultation under that section to be no shorter

than 12 months starting when the subsequent notice of intent

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

153

and the revised draft required by paragraph (b) of this

subsection were published).

536KF Decision not to make order based on the draft

The FWC may decide that no road transport minimum standards

order is to be made based on the draft. If the FWC does so, the

FWC must publish notice of the decision on its website and by any

other means the FWC considers appropriate.

Subdivision E

Decisions on minimum standards orders

536KG Decisions on applications for minimum standards orders

(1) If an application for a minimum standards order is made to the

FWC under subsection 536JZ(1), the FWC may decide to:

(a) refuse to consider the application; or

(b) make a minimum standards order; or

(d) if the FWC considers it appropriate to do so, instead make

minimum standards guidelines under section 536KR, as if the

application had been an application under

subsection 536KS(1) for minimum standards guidelines in

relation to the regulated workers covered by the application

under subsection 536JZ(1).

(2) Without limiting subsection (1), the FWC may refuse to consider

the application if it is not consistent with a direction of the

President under section 582(4D) (prioritisation).

536KH Terms that must be included in an employee-like worker

minimum standards order

Terms relating to coverage

(1) An employee-like worker minimum standards order must include

terms setting out in accordance with this section:

(a) the digital platform work covered by the employee-like

worker minimum standards order; and

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

154

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(b) the digital labour platform operator or operators covered by

the employee-like worker minimum standards order; and

worker minimum standards order.

(2) An employee-like worker minimum standards order must be

expressed to cover:

(a) one or more specified digital labour platform operators; and

(b) specified employee-like workers who:

(i) are engaged through or by means of a digital labour

platform operated by the digital labour platform

operator or operators covered by the employee-like

worker minimum standards order; or

(ii) perform work under a contract arranged or facilitated

through or by means of a digital labour platform

operated by the digital labour platform operator or

operators covered by the employee-like worker

minimum standards order.

(3) An employee-like worker minimum standards order must specify

the digital labour platform operator or digital labour platform

operators that are primarily responsible for providing the

entitlements of specified employee-like workers.

(4) For the purposes of subsections (1), (2) and (3):

(a) digital labour platform operators may be specified by name

or by inclusion in a specified class or specified classes; and

(b) employee-like workers must be specified by inclusion in a

specified class or specified classes.

(5) Without limiting the way in which a class may be described for the

purposes of subsection (4), the class may be described by reference

to a particular industry or sector, or part of an industry or sector, or

particular kinds of work.

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

155

536KJ Terms that must be included in a road transport minimum

standards order

Terms relating to coverage

(1) A road transport minimum standards order must include terms

setting out in accordance with this section:

(a) the work in the road transport industry covered by the road

transport minimum standards order; and

(b) the regulated road transport contractors covered by the road

transport minimum standards order; and

minimum standards order.

(2) A road transport minimum standards order must be expressed to

cover:

(a) specified road transport businesses; and

(b) specified regulated road transport contractors.

(3) For the purposes of subsection (2):

(a) road transport businesses may be specified by name or by

inclusion in a specified class or specified classes; and

(b) regulated road transport contractors must be specified by

inclusion in a specified class or specified classes.

(4) Without limiting the way in which a class may be described for the

purposes of subsection (3), the class may be described by reference

to a particular industry or sector, or part of an industry or sector, or

particular kinds of work.

536KK Term about settling disputes must be included in a

minimum standards order

A minimum standards order must include a term that provides a

procedure for settling disputes about any matters arising under the

order.

536KL Terms that may be included in a minimum standards order

(1) A minimum standards order may include terms about any of the

following matters:

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

156

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(a) payment terms;

(b) deductions;

(d) record-keeping;

(e) insurance;

(f) consultation;

(g) representation;

(h)

delegates' rights;

(i) cost recovery.

(2) The matters listed in subsection (1) do not limit the terms that may

be included in a minimum standards order.

536KM Terms that must not be included in a minimum standards

order

(1) A minimum standards order must not include terms about any of

the following matters:

(a) overtime rates;

(b) rostering arrangements;

affect the terms and conditions of engagement of regulated

workers covered by the minimum standards order;

(d) a term that would change the form of the engagement or the

status of regulated workers covered by the minimum

standards order including, but not limited to, a term that

deems a regulated worker to be an employee;

(e) a matter relating to work health and safety that is otherwise

comprehensively dealt with by a law of the Commonwealth,

a State or a Territory;

(f) a matter prescribed by the regulations, or belonging to a class

of matter prescribed by the regulations for the purposes of

this paragraph.

(3) For the purposes of paragraph (1)(e):

(a) the regulations may specify that a particular matter, or a

matter included in a class of matters, is, or is not, dealt with

comprehensively by a law of the Commonwealth, a State or a

Territory; and

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

157

(b) the regulations may prescribe one or more laws of the

Commonwealth, a State or a Territory to which that

paragraph does, or does not, not apply.

536KN Further terms that must not be included in a road transport

minimum standards order

(1) In addition to the matters in section 536KM, a road transport

minimum standards order must not include terms about any of the

following matters:

(a) a matter relating to road transport that is otherwise

comprehensively dealt with:

(i) by the Heavy Vehicle National Law as set out in the

Schedule to the

Heavy Vehicle National Law Act 2012

(Qld); or

(ii) by another law of the Commonwealth, a State or a

Territory;

(b) a matter prescribed by the regulations, or belonging to a class

of matter prescribed by the regulations.

(2) For the purposes of paragraph (1)(b):

(a) the regulations may specify that a particular matter, or a

matter included in a class of matters, is, or is not, dealt with

comprehensively by the Heavy Vehicle National Law as set

out in the Schedule to the

Heavy Vehicle National Law Act

2012

(Qld) or another law of the Commonwealth, a State or a

Territory; and

(b) the regulations may prescribe one or more laws of the

Commonwealth, a State or a Territory to which

subparagraph (1)(a)(ii) does, or does not, not apply.

536KP Applications to vary or revoke minimum standards orders

Any of the following may apply to the FWC for a determination

varying or revoking a minimum standards order:

(a) an organisation that is entitled to represent the industrial

interests of one or more regulated workers covered by the

minimum standards order or who would be covered by the

minimum standards order as proposed to be varied;

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

158

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(b) an organisation that is entitled to represent the industrial

interests of one or more of the regulated businesses covered

by the minimum standards order, or that would be covered by

the minimum standards order as proposed to be varied;

or that would be covered by the proposed minimum

standards order as proposed to be varied;

(d) the Minister.

536KQ FWC may vary or revoke minimum standards orders if

consistent with the minimum standards objective

(1) The FWC may make a determination varying or revoking a

minimum standards order if the FWC is satisfied that making the

determination is consistent with the minimum standards objective.

Note:

In the case of a road transport minimum standards order, the FWC

must also consider the road transport objective.

(2) The FWC may make a determination varying a minimum standards

order in such a way that not all of the elements of the variation

sought in an application under section 536KP are implemented,

including by refusing to make a variation to the extent that it would

result in the order covering persons who are not regulated workers.

(3) The FWC may make a determination varying a minimum standards

order to remove an ambiguity or uncertainty or to correct an error.

(4) The FWC may make a determination varying or revoking a

minimum standards order:

(a) on its own initiative; or

(b) on application under section 536KP.

Division

4--Minimum standards guidelines

536KR Minimum standards guidelines

(1) The FWC may make minimum standards guidelines under this

section that set standards for regulated workers performing work

under a services contract.

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

159

(2) Minimum standards guidelines for employee-like workers are

employee-like worker guidelines

(3) Minimum standards guidelines for regulated road transport

contractors are

road transport guidelines

(4) The FWC may make minimum standards guidelines under this

section:

(a) on its own initiative; or

(b) on application under section 536KS.

536KS Applications for minimum standards guidelines

(1) Any of the following may apply to the FWC for the making of

minimum standards guidelines:

(a) an organisation that is entitled to represent the industrial

interests of one or more regulated workers who would be

covered by the proposed minimum standards guidelines;

(b) an organisation that is entitled to represent the industrial

interests of one or more of the regulated businesses that

would be covered by the proposed minimum standards

guidelines;

minimum standards guidelines;

(d) the Minister.

Matters to be specified in an application

(2) An application for the making of minimum standards guidelines

must specify the class of regulated workers to be covered by the

guidelines.

(3) Without limiting the way in which a class may be described for the

purposes of subsection (2), the class may be described by reference

to a particular industry or sector, or part of an industry or sector, or

particular kinds of work.

536KT Initial matter to be considered for employee-like worker

minimum standards guidelines

(1) This section applies if:

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

160

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(a) an application is made for employee-like worker guidelines

under subsection 536KS(1), or for a variation of

employee-like worker guidelines under section 536L; or

(b) the FWC is considering making or varying minimum

standards guidelines on its own initiative.

(2) Before making a decision under section 536KU, the FWC must

consider whether, on the whole, the persons included (or

purportedly included) in the class of employee-like workers to be

covered by the minimum standards guidelines, or the guidelines as

proposed to be varied, are employee-like workers.

(3) If the FWC is not satisfied that, on the whole, the persons included

(or purportedly included) in the class of employee-like workers to

be covered by the minimum standards guidelines, or the guidelines

as proposed to be varied, are employee-like workers, the FWC

must decide to refuse to consider the application, or not to make or

vary the guidelines, as the case requires.

536KU Decisions on applications for minimum standards guidelines

(1) If an application for minimum standards guidelines is made to the

FWC under subsection 536KS(1), the FWC may decide to:

(a) refuse to consider the application; or

(b) make minimum standards guidelines; or

(d) if the FWC considers it appropriate to do so, instead make a

minimum standards order under subsection 536JY(1) instead,

as if the application had been an application under

subsection 536JZ(1) for a minimum standards order in

relation to the regulated workers covered by the application

under subsection 536KS(1).

(2) Without limiting subsection (1), the FWC may refuse to consider

the application if it is not consistent with a direction of the

President under subsection 582(4D) (prioritisation).

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

161

536KV Minimum standards guidelines not to be made if a minimum

standards order is in operation

The FWC must not make minimum standards guidelines that cover

the same regulated workers and the same regulated businesses in

relation to the same matters as a minimum standards order that is in

operation.

536KW Terms that must be included in minimum standards

guidelines

Minimum standards guidelines must include terms setting out the

same matters in relation to minimum standards orders as set out in

the following:

(a) in the case of employee-like worker guidelines

section 536KH;

(b) in the case of road transport guidelines

in section 536KJ.

536KX Terms that may be included in minimum standards

guidelines

Minimum standards guidelines may include terms about any of the

matters that may be included in minimum standards orders under

section 536KL.

536KY Terms that must not be included in minimum standards

guidelines

Minimum standards guidelines must not include terms about any of

the matters that must not be included in minimum standards orders

as set out in the following:

(a) in the case of employee-like worker minimum standards

orders and road transport minimum standards orders

section 536KM;

(b) in the case of road transport minimum standards orders

section 536KN.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

162

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

536KZ FWC may vary or revoke minimum standards guidelines if

consistent with the minimum standards objective and the

road transport objective

(1) The FWC may make a determination varying or revoking

minimum standards guidelines if the FWC is satisfied that making

the determination is consistent with:

(a) the minimum standards objective; and

(b) if the President considers that the determination might relate

to the road transport industry

the road transport objective.

(2) The FWC may make a determination varying minimum standards

guidelines in such a way that not all of the elements of the

variation sought in an application under section 536L are

implemented, including by refusing to make a variation to the

extent that it would result in the guidelines covering persons who

are not regulated workers.

(3) The FWC may make a determination varying minimum standards

guidelines to remove an ambiguity or uncertainty or to correct an

error.

(4) The FWC may make a determination varying or revoking

minimum standards guidelines:

(a) on its own initiative; or

(b) on application under section 536L.

(5) If the FWC makes a minimum standards order that covers the same

regulated workers and the same regulated businesses in relation to

the same matters as minimum standards guidelines, the FWC must

revoke the minimum standards guidelines with effect on and from

the day on which the minimum standards order comes into

operation.

(6) If the FWC makes a minimum standards order that covers some or

all of the same regulated workers and the same regulated

businesses in relation to some or all of the same matters as

minimum standards guidelines, the FWC must vary the minimum

standards guidelines so that the guidelines do not cover the

regulated workers, regulated businesses or matters covered by the

order, with effect on and from the day on which the order comes

into operation.

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

163

536L Applications to vary or revoke minimum standards guidelines

Any of the following may apply to the FWC for a determination

varying or revoking minimum standards guidelines:

(a) an organisation that is entitled to represent the industrial

interests of one or more regulated workers covered by the

minimum standards guidelines, or who would be covered by

the minimum standards guidelines as proposed to be varied;

(b) an organisation that is entitled to represent the industrial

interests of one or more of the regulated businesses covered

by the minimum standards guidelines, or that would be

covered by the minimum standards guidelines as proposed to

be varied;

guidelines, or that would be covered by the minimum

standards order as proposed to be varied;

(d) the Minister.

Division

5--Merits review of certain decisions relating to

minimum standards orders

536LA Regulations may be made for internal merits review of

decisions relating to road transport minimum standards

orders

(1) The regulations may empower or require the FWC to review the

following decisions:

(a) a decision to make a road transport minimum standards

order;

(b) a decision to vary a road transport minimum standards order.

(2) Without limiting subsection (1), the regulations may empower the

FWC to do one of more of the following:

(a) to reconsider the decision;

(b) to confirm, revoke or vary the decision;

(3) Without limiting subsection (1), the regulations may provide that a

reconsideration, confirmation, revocation or variation of a decision,

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

164

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

a setting aside of a decision and a substitution of a new decision,

may have the effect:

(a) that the operation of a road transport minimum standards

order is suspended for a definite or indefinite period; or

(b) that a road transport minimum standards order is revoked; or

order commences is varied; or

(d) that the operation of one or more terms of a road transport

minimum standards order is suspended for a definite or

indefinite period.

(4) Without limiting subsection (1), the regulations may provide for

and in relation to the following, in respect of the review of a

decision mentioned in subsection (1):

(a) the circumstances in which an application for review can be

made;

(b) the persons who may apply for review;

applications;

(d) the enforcement of decisions made on review;

(e) the circumstances in which a decision mentioned in

subsection (2) may have an effect mentioned in

subsection (3);

(f) matters consequential on a decision made on review

including, but not limited to requirements in respect of a

decision that has the effect of suspending a road transport

minimum standards order or varying its commencement;

(g) how the FWC is constituted for the purposes of the review.

Part

3--Unfair deactivation or unfair

termination of regulated workers

Division

1--Introduction

536LB Guide to this Part

This Part is about:

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

165

(a) unfair deactivation from digital labour platforms of

employee-like workers; and

(b) unfair termination of the services contracts of regulated

road transport contractors.

Division 2 sets out when a person is protected from unfair

deactivation or unfair termination.

Division 3 sets out the elements that make up unfair deactivation or

unfair termination.

Division 4 sets out the remedies that the FWC can grant for unfair

deactivation or unfair termination.

Division 5 is about the procedural aspects of getting remedies for

unfair deactivation or unfair termination.

536LC Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair deactivation

of employee-like workers, and unfair termination of

regulated road transport contractors, that balances:

(i) the needs of regulated businesses; and

(ii) the needs of regulated workers; and

(b) to establish procedures for dealing with unfair deactivation

and unfair termination that:

(i) are quick, flexible and informal; and

(ii) address the needs of regulated businesses and regulated

workers; and

to be unfair, with an emphasis on reactivation or

reinstatement, as the case requires.

(2) The procedures and remedies referred to in paragraphs (1)(b) and

(c), and the manner of deciding on and working out such remedies,

are intended to ensure that a "fair go all round" is accorded to both

the regulated businesses and regulated workers concerned.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

166

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Note:

The expression "fair go all round" was used by Sheldon J in

in re Loty

and Holloway v Australian Wor

kers' Union

[1971] AR (NSW) 95.

Division

2--Protection from unfair deactivation or unfair

termination

536LD When a person is protected from unfair deactivation

A person is

protected from unfair deactivation

at a time if, at that

time:

(a) the person is an employee-like worker; and

(b) the person:

(i) performs work through or by means of a digital labour

platform operated by a digital labour platform operator;

(ii) performs work under a services contract arranged or

facilitated through or by means of a digital labour

platform operated by a digital labour platform operator;

and

that digital labour platform, or under a contract, or a series of

contracts, arranged or facilitated through or by means of the

digital labour platform, on a regular basis for a period of at

least 6 months.

536LE When a person is protected from unfair termination

A person is

protected from unfair termination

at a time if, at that

time:

(a) the person is a regulated road transport contractor; and

(b) a road transport business receives services under a services

contract (whether or not the business is a party to the services

contract) under which the person performs work in the road

transport industry; and

industry under a services contract under which that road

transport business receives services for a period of at least 12

months.

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

167

Division

3--What is an unfair deactivation or unfair

termination

Subdivision A

Unfair deactivation

536LF What is an unfair deactivation

A person has been

unfairly deactivated

if the FWC is satisfied

that:

(a) the person has been deactivated from a digital labour

platform; and

(b) the deactivation was unfair; and

Platform Deactivation Code.

536LG Meaning of

deactivated

A person has been

deactivated

from a digital labour platform if:

(a) the person performed digital platform work through or by

means of the digital labour platform; and

(b) the digital labour platform operator modified, suspended, or

terminated the person's access to the digital labour platform;

and

existing or prospective services contract, or the ability of the

person to do so is so significantly altered that in effect the

person is no longer able to perform such work.

536LH Criteria for considering whether a deactivation was unfair

etc.

(1) In considering whether it is satisfied

that a person's deactivation

was unfair, the FWC must take into account:

(a) whether there was a valid reason for the deactivation related

to the person's capacity or conduct; and

(b) whether any relevant processes specified in the Digital

Labour Platform Deactivation Code were followed; and

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

168

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(2) Despite subsection (1) and any other provision of this Part, a

deactivation that occurs because of serious misconduct of the

person who was deactivated is not unfair.

536LJ Minister to make a Digital Labour Platform Deactivation

Code

(1) The Minister must, by legislative instrument, make code to be

known as the Digital Labour Platform Deactivation Code.

(2) Without limiting the matters covered by the Digital Labour

Platform Deactivation Code, the code must deal with the following

matters:

(a) the circumstances in which work is performed on a regular

basis;

(b) matters that constitute or may constitute a valid reason for

deactivation;

(d) the internal processes of digital labour platform operators in

relation to deactivation;

(e) communication between the employee-like worker and the

digital labour platform operator in relation to deactivation;

(f) the accessibility in practice of the internal processes of digital

labour platform operators in relation to deactivation;

(g) the treatment of data relating to the work performed by

employee-like workers.

(3)

A person's deactivation was

consistent with the Digital Labour

Platform Deactivation Code

if, at the time of the deactivation, the

digital labour platform operator complied with the Digital Labour

Platform Deactivation Code in relation to the deactivation.

Subdivision B

What is an unfair termination

536LK What is an unfair termination

A person has been

unfairly terminated

if:

(a) the person was performing work in the road transport

industry; and

(b) the person has been terminated; and

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

169

(d) the termination was not consistent with the Road Transport

Industry Termination Code.

536LL Meaning of

terminated

A person has been

terminated

if:

(a) the person performed work as a regulated road transport

contractor under a services contract; and

(b) a road transport business received services under the services

contract; and

conduct of, the road transport business.

536LM Criteria for considering whether a termination was unfair

etc.

(1) In considering whether it is satisfied that a termination was unfair,

the FWC must take into account:

(a) whether there was a valid reason for the termination related

to the person's capacity or conduct; and

(b) whether any relevant processes specified in the Road

Transport Industry Termination Code were followed; and

(2) Despite subsection (1) and any other provision of this Part, a

termination that occurs because of serious misconduct of the

person who was deactivated is not unfair.

536LN Minister to make Road Transport Industry Termination

Code

(1) The Minister may, by legislative instrument, make a code to be

known as the Road Transport Industry Termination Code.

(2) Without limiting the matters covered by the Road Transport

Industry Termination Code, the code must deal with the following

matters:

(a) matters that constitute or may constitute a valid reason for

termination;

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

170

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(b) rights of response to terminations;

to a termination;

(d) communication between the regulated road transport

contractor and road transport business in relation to a

termination.

(3)

A person's termination was

consistent with the Road Transport

Industry Termination Code

if, immediately before the time of the

termination, or at the time the person was given notice of the

termination (whichever happened first), the regulated road

transport business that terminated the services contract concerned

or as a result of whose conduct the services contract concerned was

terminated, complied with the Road Transport Industry

Termination Code.

Division

4--Remedies

Subdivision A

Remedies for unfair deactivation

536LP When the FWC may order remedy for unfair deactivation

(1) Subject to subsection

(3), the FWC may order a person's

reactivation if:

(a) the FWC is satisfied that the person was protected from

unfair deactivation (see section 536LD) at the time of being

deactivated; and

(b) the person has been unfairly deactivated (see Division 2).

(2) The FWC may make the order only if the person has made an

application under section 536LU.

(3) The FWC must not order the payment of compensation to the

person.

Note:

Division 5 deals with procedural matters such as applications for

remedies.

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

171

536LQ Remedy

reactivation etc.

Reactivation

(1)

An order for a person's reactivation must be an order that the

digital labour platform operator who operated the digital platform

at the time of the deactivation take measures to restore the person

to the position they would have been in but for the deactivation,

including as follows:

(a)

if the person's access to the digital labour platform was

suspended

by removing the suspension;

(b)

if the person's access to the digital labour platform was

terminated

by reins

tating the person's access to the digital

labour platform;

(c)

by modifying the person's access to the digital labour

platform so that the access is as it was before the person's

access to the digital labour platform was terminated or

suspended.

(2) If:

(a) the digital labour platform (the

original digital labour

platform

) from which the person was deactivated no longer

exists; and

(b) a similar digital labour platform (the

second digital labour

platform

) is operated by an associated entity of the operator

of the original digital labour platform;

the order under subsection (1) may be an order to the associated

entity to provide access to the second digital labour platform on

terms and conditions no less favourable than those immediately

before the person

's access to the original digital labour platform

was terminated or suspended.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it

appropriate to do so, the FWC may also make any order that the

FWC considers appropriate to cause the digital labour platform

operator or the associated entity to pay to the person an amount for

the remuneration lost, or likely to have been lost, by the person

because of the deactivation.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

172

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(4) In determining an amount for the purposes of an order under

subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from

work of any kind during the period between the deactivation

and the making of the order for reactivation; and

(b) the amount of any remuneration reasonably likely to be so

earned by the person during the period between the making

of the order for reactivation and the actual reactivation.

Subdivision B

Remedies for unfair termination

536LR When the FWC may order remedy for unfair termination

(1) Subject to subsection (3), the FWC may order that a new contract

be entered into, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from

unfair termination (see section 536LE) at the time of being

terminated; and

(b) the person has been unfairly terminated (see Division 3).

(2) The FWC may make the order only if the person has made an

application under section 536LU.

(3) The FWC must not order the payment of compensation to the

person unless:

(a) the FWC is satisfied that entering into a new services

contract would be inappropriate; and

(b) the FWC considers an order for payment of compensation is

appropriate in all the circumstances of the case.

Note:

Division 5 deals with procedural matters such as applications for

remedies.

536LS Remedy

new contract, etc.

Reinstatement

(1) An order for a new contract must be an order that the road

transport business at the time of the termination enter into a new

contract in the same terms as the services contract at the time of the

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

173

termination or with such variations as the FWC considers

appropriate.

(2) If:

(a) the road transport business at the time of the termination is

no longer a road transport business; and

(b) an associated entity of the road transport business is a road

transport business;

the order under subsection (1) may be an order to the associated

entity to enter into a new contract on terms and conditions no less

favourable than the services contract immediately before the

termination, with such variations as the FWC considers

appropriate.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it

appropriate to do so, the FWC may also make any order that the

FWC considers appropriate to cause the road transport business to

pay to the person an amount for the remuneration lost, or likely to

have been lost, by the person because of the termination.

(4) In determining an amount for the purposes of an order under

subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from

work of any kind during the period between the termination

and the making of the order that the road transport business

enter into a new services contract with the person; and

(b) the amount of any remuneration reasonably likely to be so

earned by the person during the period between the making

of the order that the road transport business enter into a new

services contract with the person and when the new services

contract is entered into.

536LT Remedy

compensation

Compensation

(1) An order for the payment of compensation to a person must be an

order that the road transport business at the time of the termination

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

174

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

pay compensation to the person in lieu of entering into a new

services contract.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under

subsection (1), the FWC must take into account all the

circumstances of the case including:

(a) the effect of the order on the viability of the road transport

business; and

(b) the remuneration that the person would have received, or

would have been likely to receive, if the person had not been

terminated; and

because of the termination; and

(d) the amount of any remuneration earned by the person from

work of any kind during the period between the termination

and the making of the order for compensation; and

(e) the amount of any income reasonably likely to be so earned

by the person during the period between the making of the

order for compensation and the actual compensation; and

(f) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to

the road transport business's decision to terminate the person, the

FWC must reduce the amount it would otherwise order under

subsection (1) by an appropriate amount on account of the

misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under

subsection (1) must not include a component by way of

compensation for shock, distress or humiliation, or other analogous

hurt, caused to the person by the manner of the person's

termination.

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

175

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under

subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the contractor high income threshold

immediately before the termination.

(6) The amount is the total amount of remuneration received by the

person or to which the person was entitled (whichever is higher)

for any period during which the person performed work under the

services contract during the 26 weeks immediately before the

termination.

Division

5--Procedural matters

536LU Application for unfair deactivation or unfair termination

remedy

(1) A person who has been deactivated or terminated may apply to the

FWC for an order under Division 4 granting a remedy.

Note 1:

Division 4 sets out when the FWC may order a remedy for unfair

deactivation or unfair termination.

Note 2:

For application fees, see section 536LV.

Note 3:

Part 6-1 may prevent an application being made under this Part in

relation to a deactivation or termination if an application or complaint

has been made in relation to the deactivation or termination other than

under this Part.

(2) A person must not make an application under subsection (1) unless

the sum of the person's annual rate of earnings, and such other

amounts (if any) worked out in relation to the person in accordance

with the regulations, is less than the contractor high income

threshold.

(3) The application must be made:

(a) within 21 days after the deactivation or termination took

effect; or

(b) within such further period as the FWC allows under

subsection (4).

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

176

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(4) The FWC may allow a further period for the application to be

made by a person under subsection (1) if the FWC is satisfied that

there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the deactivation or

termination after it had taken effect; and

termination; and

(d) prejudice to the regulated business (including prejudice

caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other regulated workers in

a similar position; and

(g) any processes specified in the Digital Labour Platform

Deactivation Code or the Road Transport Industry

Termination Code, as the case requires.

536LV Application fees

(1) An application to the FWC under this Division must be

accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under this

Division; and

(b) a method for indexing the fee; and

waived or refunded.

536LW Initial matters to be considered before merits

The FWC must decide the following matters relating to an

application for an order under Division 4 before considering the

merits of the application:

(a) whether the application was made within the period required

in subsection 536LU(3);

(b) whether the person was protected from unfair deactivation or

unfair termination, as the case requires;

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

177

the Digital Labour Platform Deactivation Code or the Road

Transport Industry Termination Code, as the case requires.

536LX Matters involving contested facts

The FWC must conduct a conference or hold a hearing in relation

to a matter arising under this Part if, and to the extent that, the

matter involves facts the existence of which is in dispute.

536LY Conferences

(1) This section applies in relation to a matter arising under this Part if

the FWC conducts a conference in relation to the matter.

(2) Despite subsection 592(3), the FWC must conduct the conference

in private.

(3) The FWC must take into account any difference in the

circumstances of the parties to the matter in:

(a) considering the application; and

(b) informing itself in relation to the application.

(4) The FWC must take into account the wishes of the parties to the

matter as to the way in which the FWC:

(a) considers the application; and

(b) informs itself in relation to the application.

536LZ Hearings

(1) The FWC must not hold a hearing in relation to a matter arising

under this Part unless the FWC considers it appropriate to do so,

taking into account:

(a) the views of the parties to the matter; and

(b) whether a hearing would be the most effective and efficient

way to resolve the matter.

(2) If the FWC holds a hearing in relation to a matter arising under this

Part, it may decide not to hold the hearing in relation to parts of the

matter.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

178

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(3) The FWC may decide at any time (including before, during or after

conducting a conference in relation to a matter) to hold a hearing in

relation to the matter.

536M Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for

an order under Division 4 if the FWC is satisfied that the applicant

has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a

hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC

relating to the application; or

agreement has been concluded.

Note 1:

For another power of the FWC to dismiss applications for orders

under Division 4, see section 587.

Note 2:

The FWC may make an order for costs if the applicant's failure causes

the other party to the matter to incur costs (see section 536MB).

(2) The FWC may exercise its power under subsection (1) on

application by a regulated business.

(3) This section does not limit when the FWC may dismiss an

application.

536MA Appeal rights

(1) Despite subsection 604(2), the FWC must not grant permission to

appeal from a decision made by the FWC under this Part unless the

FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the

FWC in relation to a matter arising under this Part can only, to the

extent that it is an appeal on a question of fact, be made on the

ground that the decision involved a significant error of fact.

536MB Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter

arising under this Part (the

first party

) for costs incurred by the

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

179

other party to the matter if the FWC is satisfied that the first party

caused those costs to be incurred because of an unreasonable act or

omission of the first party in connection with the conduct or

continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other

party to the matter has applied for it in accordance with

section 536MD.

(3)

This section does not limit the FWC's power to order costs under

section 611.

536MC Costs orders against lawyers and paid agents

(1) This section applies if:

(a) an application for an unfair deactivation or unfair termination

remedy has been made under section 536LU; and

(b) a person who is a party to the matter has engaged a lawyer or

paid agent (the

representative

) to represent the person in the

matter; and

96, the person is required to seek the FWC's

permission to be represented by the representative.

(2) The FWC may make an order for costs against the representative

for costs incurred by the other party to the matter if the FWC is

satisfied that the representative caused those costs to be incurred

because:

(a) the representative encouraged the person to start, continue or

respond to the matter and it should have been reasonably

apparent that the person had no reasonable prospect of

success in the matter; or

(b) of an unreasonable act or omission of the representative in

connection with the conduct or continuation of the matter.

(3) The FWC may make an order under this section only if the other

party to the matter has applied for it in accordance with

section 536MD.

(4)

This section does not limit the FWC's power to order costs under

section 611.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

180

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

536MD Applications for costs orders

An application for an order for costs under section 611 in relation

to a matter arising under this Part, or for costs under

section 536MB or 536MC, must be made within 14 days after:

(a) the FWC determines the matter; or

(b) the matter is discontinued.

536ME Schedule of costs

(1) A schedule of costs may be prescribed in relation to items of

expenditure likely to be incurred in relation to matters that can be

covered by an order:

(a) under section 611 in relation to a matter arising under this

Part; or

(b) under section 536MB or 536MC;

including expenses arising from the representation of a party by a

person or organisation other than on a legal professional basis.

(2) If a schedule of costs is prescribed for the purposes of

subsection (1), then, in awarding costs under section 611 in relation

to a matter arising under this Part, or awarding costs under

section 536MB or 536MC, the FWC:

(a) is not limited to the items of expenditure appearing in the

schedule; but

(b) if an item does appear in the schedule

must not award costs

in relation to that item at a rate or of an amount that exceeds

the rate or amount appearing in the schedule.

536MF Security for costs

The procedural rules may provide for the furnishing of security for

the payment of costs in relation to matters arising under this Part.

536MG Contravening orders under this Part

A person to whom an order under this Part applies must not

contravene a term of the order.

Note:

This section is a civil remedy provision (see Part 4-1).

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

181

Part

4--Collective agreements for regulated

workers

Division

1--Introduction

536MH Guide to this Part

This Part is about collective agreements. A collective agreement is

made between a regulated business, specifically a digital labour

platform operator or a road transport business, and an organisation.

A collective agreement provides terms and conditions for the

regulated workers to whom it applies.

Division 2 deals with the making of collective agreements and

provides for the giving of consultation notices, and for the

notification of regulated workers.

Division 3 deals with the registration of collective agreements by

the FWC.

Division 4 deals with the variation of collective agreements.

Division 5 deals with the termination of collective agreements.

Division 6 deals with terms of a collective agreement that are of no

effect.

536MJ Object of this Part

The object of this Part is to provide a simple, flexible and fair

framework that enables collective agreements to be made by

consent for:

(a) employee-like workers;

(b) regulated road transport contractors.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

182

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Division

2--Regulated workers and regulated businesses

may make collective agreements

536MK Making a collective agreement

(1) This section provides for the making of an agreement (a

collective

agreement

) between a regulated business and an organisation that

is entitled to represent the industrial interests of one or more

regulated workers.

Collective agreement for employee-like workers

(2) A collective agreement may be made between a digital labour

platform operator and an organisation that is entitled to represent

the industrial interests of one or more employee-like workers, in

respect of the following:

(a) the terms and conditions on which employee-like workers

covered by the collective agreement perform digital platform

work:

(i) under a services contract to which the digital labour

platform operator is a party; or

(ii) under a services contract arranged or facilitated through

or by means of the digital labour platform operated by

the digital labour platform operator;

(b) how the collective agreement will operate.

Note:

For when a collective agreement

covers

a digital labour platform

operator, an employee-like worker or an organisation, see

section 536JM.

Collective agreement for regulated road transport contractors

(3) A collective agreement may be made between a road transport

business and an organisation that is entitled to represent the

industrial interests of one or more regulated road transport

contractors, in respect of the following:

(a) the terms and conditions on which regulated road transport

contractors covered by the collective agreement perform

work under services contracts to which the road transport

business is a party;

(b) how the collective agreement will operate.

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

183

Note:

For when a collective agreement

covers

a road transport business, a

regulated road transport contractor or an organisation, see

section 536JM.

(4) A collective agreement referred to in subsection (2) is an

employee-like worker collective agreement

(5) A collective agreement referred to in subsection (3) is a

road

transport collective agreement

536ML Notice of consultation period for a proposed collective

agreement

(1) The following entities may initiate a consultation period for a

proposed collective agreement by giving a notice under this section

consultation notice

for the agreement):

(a) a regulated business that will be covered by the proposed

collective agreement;

(b) an organisation that is entitled to represent the industrial

interests of one or more regulated workers who will be

covered by the proposed collective agreement.

General matters to be specified in a consultation notice

(2) A consultation notice for a proposed collective agreement must

specify the following:

(a) that the entity giving the notice (the

notifying entity

)

proposes to try to make a collective agreement under this

Part;

(b) whichever of the following is applicable:

(i) if the notifying entity is a regulated business

the name

of the organisation to which the consultation notice is

given;

(ii) otherwise

the name of the organisation giving the

consultation notice;

collective agreement;

(d) the regulated business that will be covered by the proposed

collective agreement;

(e) the class of regulated workers who will be covered by the

proposed collective agreement.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

184

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

536MM Consultation notice to be given to FWC, etc.

(1) A consultation notice for a proposed collective agreement must be

given on the same day:

(a) to the FWC; and

(b) to whichever of the following is applicable:

(i) if the notifying entity is a regulated business

to an

organisation that is entitled to represent the industrial

interests of the regulated workers who will be covered

by the proposed collective agreement;

(ii) otherwise

to the regulated business that will be

covered by the agreement.

(2) The notifying entity for a consultation notice, and the entity to

which the consultation notice is given, are the

negotiating entities

for the proposed collective agreement.

(3) The FWC must publish a copy of the consultation notice on the

WC's website.

536MN Notice to be given to regulated workers

(1) After a consultation notice has been given for a proposed collective

agreement, either negotiating entity for the agreement must, with

the consent of the other negotiating entity, make reasonable efforts

to give a notice under this section to whichever of the following is

applicable:

(a) for a proposed employee-like worker collective agreement

each eligible employee-like worker

for the proposed

collective agreement (see subsection (3));

(b) for a proposed road transport collective agreement

each

eligible regulated road transport contractor

for the proposed

collective agreement (see subsection (4)).

(2) A notice given under subsection (1) must specify the following:

(a) the regulated business that will be covered by the proposed

collective agreement;

(b) the class of regulated workers that will be covered by the

proposed collective agreement, and that the regulated worker

to whom the notice is given is included in that class;

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

185

agreement on behalf of the regulated workers;

(d) the matters proposed to be dealt with in the proposed

collective agreement.

(3) For the purposes of this section, an

eligible employee-like worker

for a proposed employee-like worker collective agreement is an

employee-like worker who, at any time during the period of 28

days before the consultation notice was given, was performing

work under a services contract:

(a) through or by means of a digital labour platform operated by

the digital labour platform operator that will be covered by

the proposed collective agreement; or

(b) arranged or facilitated through or by means of a digital labour

platform operated by the digital labour platform operator that

will be covered by the proposed collective agreement.

(4) For the purposes of this section, an

eligible regulated road

transport contractor

for a proposed road transport collective

agreement is a regulated road transport contractor who, at any time

during the period of 28 days before the consultation notice was

given, was performing work under a services contract to which a

road transport business that will be covered by the proposed

collective agreement is a party.

536MP Application for the FWC to deal with a dispute

(1) If the negotiating entities for a proposed collective agreement are

unable to resolve a dispute about the making of the agreement,

either negotiating entity may, with the consent of the other entity,

apply to the FWC for the FWC to deal with the dispute.

(2) If an application is made under subsection (1), the FWC must deal

with the dispute (other than by arbitration).

536MQ Negotiating entity may request that other negotiating entity

sign a proposed collective agreement

(1) A negotiating entity for a proposed collective agreement may

request the other negotiating entity for the agreement to sign the

agreement.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

186

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(2) A request under subsection (1) must not be made earlier than 30

days after the last day on which a notice was given to an

employee-like worker or a regulated road transport contractor, as

the case requires, under subsection 536MN(1) in relation to the

proposed collective agreement.

(3) The collective agreement is

made

when both of the negotiating

parties for the agreement sign the agreement.

Division

3--Registration of collective agreements by the

FWC

536MR Application to the FWC to register a collective agreement

(1) If a collective agreement is made, a negotiating entity for the

agreement that signed the agreement may, with the consent of the

other negotiating entity for the agreement, apply to the FWC to

Material to accompany the application

(2) The application must be accompanied by a signed copy of the

collective agreement, which must identify the following:

(a) the regulated business covered by the collective agreement;

(b) the organisation covered by the collective agreement;

agreement.

(3) The application must be accompanied by a declaration signed by

the regulated business and the organisation covered by the

collective agreement, which must:

(a) state that the regulated business and the organisation

explained the terms of the agreement and their effect to the

regulated workers covered by the agreement, and a

description of the explanation; and

(b) state that the regulated business or the organisation, as the

case requires, made reasonable efforts to give a notice under

paragraph 536MN(1)(a) or (b) to the regulated workers

referred to in whichever of those paragraphs is applicable;

and

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

187

duress in relation to the making of the collective agreement:

(i) the regulated business covered by the collective

agreement;

(ii) the organisation covered by the collective agreement;

(iii) a regulated worker to whom a notice was given under

paragraph 536MN(1)(a) or (b); and

(e) if a minimum standards order is in operation that covers the

same class of regulated workers as the collective agreement

covers

specify:

(i) the minimum standards order; and

(ii) in relation to each matter dealt with by a term of the

collective agreement that is also dealt with by a term of

the minimum standards order

how the term of the

collective agreement is more beneficial to the regulated

workers covered by the collective agreement in relation

to that matter than the term of the order in relation to

that matter.

(4) The application must be accompanied by any other declaration

required by the procedural rules.

536MS FWC must register collective agreement

(1) If an application for the registration of a collective agreement is

made under subsection 536MR(1), the FWC must register the

agreement if the requirements of section 536MR and subsection (2)

of this section are met in relation to the agreement.

(2) The FWC must be satisfied that the collective agreement includes a

term that provides a procedure that requires or allows the FWC, or

another person who is independent of the persons covered by the

agreement, to settle disputes:

(a) about any matters arising under the collective agreement; and

(b) that allows for the representation of regulated workers

covered by the collective agreement for the purposes of that

procedure.

(3) The FWC must be satisfied that the collective agreement includes

the following:

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

188

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(a) a term that provides for its period of operation;

(b) a term that provides for requirements in relation to

terminating the collective agreement before the end of that

period.

(4) The FWC must publish a copy of the collective agreement and the

declaration referred to in subsection 5

36MR(3) on the FWC's

website.

Division

4--Variation of collective agreements

536MT Application for variation of a collective agreement

(1) The following may apply for a variation of a collective agreement

that is in operation:

(a) the regulated business covered by the collective agreement;

(b) the organisation covered by the collective agreement.

Material to accompany the application

(2) The application must be accompanied by a signed copy of the

collective agreement as proposed to be varied, which must identify

the following:

(a) the regulated business covered by the collective agreement;

(b) the organisation covered by the collective agreement;

agreement as proposed to be varied.

(3) The application must be accompanied by a declaration signed by

the regulated business and the organisation covered by the

collective agreement, which must:

(a) state that the regulated business and the organisation

explained the terms of the agreement and their effect to the

regulated workers covered by the agreement as proposed to

be varied, and a description of the explanation; and

(b) if a minimum standards order is in operation that covers the

same class of regulated workers as the collective agreement

as proposed to be varied

specify:

(i) the minimum standards order; and

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

189

(ii) in relation to each matter dealt with by a term of the

collective agreement as proposed to be varied that is

also dealt with by a term of the minimum standards

order

how the term of the collective agreement as

proposed to be varied is more beneficial to the regulated

workers covered by the collective agreement as

proposed to be varied, in relation to that matter, than the

term of the order in relation to that matter; and

covered by the collective agreement as proposed to be varied

was subject to any form of duress in relation to the variation.

(4) The application must be accompanied by any other declaration

required by the procedural rules.

536MU FWC must vary collective agreement

(1) If an application for a variation of a collective agreement is made

under subsection 536MT(1), the FWC must register the agreement

as varied if the requirements of section 536MT are met in relation

to the variation.

(2) The FWC must publish a copy of the collective agreement as

varied and the declaration referred to in subsection 536MT(3) on

the FWC's web

site.

(3) The variation comes into operation when the agreement as varied is

registered.

Division

5--Termination of collective agreements

536MV FWC must be notified of termination

(1) This section applies if a collective agreement has been terminated

in accordance with the process specified in the agreement for

terminating the agreement before the end of its period of operation.

(2) The regulated business or the organisation covered by the

collective agreement must, with the consent of the other, notify the

FWC of the termination on the date the agreement is terminated.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

190

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Declaration that must accompany application

(3) The notice under subsection (2) must be accompanied by a

declaration signed by the regulated business and the organisation

covered by the collective agreement:

(a) stating that the collective agreement has been terminated in

accordance with the process; and

(b) specifying the date of effect of the termination.

(4) The notice must be accompanied by any other declaration required

by the procedural rules.

536MW FWC must register termination notice

(1) If a notice is given to the FWC under subsection 536MV(2) in

relation to a collective agreement, the FWC must register the

termination by publishing a notice on the FWC's website:

(a) stating that the collective agreement has been terminated; and

(b) specifying the date of effect of the termination specified in

the declaration under paragraph 536MV(3)(b).

(2) The collective agreement ceases to operate on the date of effect of

the termination specified in the declaration under

paragraph 536MV(3)(b).

Division

6--Other matters

536MX Terms of a collective agreement that are of no effect

(1) A term of a collective agreement has no effect to the extent that it

is a term about a matter other than a matter mentioned in

subsection 536MK(2) or (3).

(2) A term of a collective agreement has no effect to the extent that it

deals with matters that are primarily of a commercial nature that do

not affect the terms and conditions of engagement of regulated

workers covered by the agreement.

(3) However, if a collective agreement includes a term that has no

effect because of subsection (1) or (2), the inclusion of the term

does not prevent the agreement from being a collective agreement.

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

191

Part

5--Unfair contract terms of services

contracts

Division

1--Introduction

536MY Guide to this Part

This Part is about unfair contract terms of services contracts.

It provides a framework for dealing with unfair contract terms.

536MZ Meaning of employee and employer

In this Part,

employee

and

employer

have their ordinary meanings.

Division

2--Object of Part

536N Object of Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair contract

terms of services contracts that:

(i) balances the needs of principals and the needs of

independent contractors; and

(ii) addresses the need for a level playing field between

independent contractors and principals by creating

disincentives to the inclusion of unfair contract terms in

services contracts; and

(iii) recognises and protects the freedom of independent

contractors to enter into services contracts; and

(b) to establish procedures for dealing with unfair contract terms

that:

(i) are quick, flexible and informal; and

(ii) address the needs of principals and independent

contractors; and

contract is found to be unfair.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

192

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(2) The procedures and remedies referred to in paragraphs (1)(b) and

(c), and the manner of deciding on and working out such remedies,

are intended to ensure that a "fair go all round" is accorded to both

the principals and independent contractors concerned.

Note:

The expression "fair go all round" was used by Sheldon J in

re Loty

and Holloway v Australian Workers' Union

[1971] AR (NSW) 95.

Division

3--Orders in relation to unfair contract terms of

services contracts

536NA When the FWC may make an order in relation to an unfair

contract term of a services contract

(1) The FWC may make an order under this Part in relation to a

services contract if the FWC is satisfied that the services contract

includes one or more unfair contract terms which, in an

employment relationship, would relate to workplace relations

matters.

(2) The FWC may make the order only if a person has made an

application under section 536ND in relation to the services

contract.

(3) The FWC must take into account fairness between the parties

concerned in deciding whether to make an order under this

Division, and the kind of order to make.

536NB Matters to be considered in deciding whether a term of a

services contract is an unfair contract term

(1) In determining whether a term of a services contract is an unfair

contract term, the FWC may take into account the following

matters:

(a) the relative bargaining power of the parties to the services

contract;

(b) whether the services contract as a whole displays a

significant imbalance between the rights and obligations of

the parties;

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

193

necessary to protect the legitimate interests of a party to the

contract;

(d) whether the contract term under consideration imposes a

harsh, unjust or unreasonable requirement on a party to the

contract;

(e) whether the services contract as a whole provides for a total

remuneration for performing work that is:

(i) less than regulated workers performing the same or

similar work would receive under a minimum standards

order or minimum standards guidelines; or

(ii) less than employees performing the same or similar

work would receive;

(f) any other matter the FWC considers relevant.

(2) The matters in paragraphs (1)(b) to (f) are to be assessed as at the

time the FWC considers the application.

536NC Remedy

order to set aside etc. contract

The FWC may make an order under this section:

(a) setting aside all or part of a services contract which, in an

employment relationship, would relate to a workplace

relations matter; or

(b) amending or varying all or part of a services contract which,

in an employment relationship, would relate to a workplace

relations matter.

Division

4--Procedural matters

536ND Application for unfair contract term remedy

(1) A person who is party to a services contract, or an organisation that

represents the industrial interests of a person who is party to a

services contract, may apply to the FWC for an order under

Division 3 granting a remedy on the basis that the services contract

contains a term that is unfair.

(2) An application must not be made in relation to a services contract

unless,

in the year the application is made, the sum of the person's

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

194

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

annual rate of earnings, and such other amounts (if any) worked

out in relation to the person in accordance with the regulations, is

less than the contractor high income threshold.

Note:

Division 3 sets out when the FWC may order a remedy for an unfair

contract term.

536NE Application fees

(1) An application to the FWC under this Division must be

accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under this

Division; and

(b) a method for indexing the fee; and

waived or refunded.

536NF Conferences

(1) This section applies in relation to a matter arising under this Part if

the FWC conducts a conference in relation to the matter.

(2) Despite subsection 592(3), the FWC must conduct the conference

in private.

(3) The FWC must take into account any difference in the

circumstances of the parties to the matter in:

(a) considering the application; and

(b) informing itself in relation to the application.

(4) The FWC must take into account the wishes of the parties to the

matter as to the way in which the FWC:

(a) considers the application; and

(b) informs itself in relation to the application.

536NG Hearings

(1) The FWC must not hold a hearing in relation to a matter arising

under this Part unless the FWC considers it appropriate to do so,

taking into account:

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

195

(a) the views of the parties to the matter; and

(b) whether a hearing would be the most effective and efficient

way to resolve the matter.

(2) If the FWC holds a hearing in relation to a matter arising under this

Part, it may decide not to hold the hearing in relation to parts of the

matter.

(3) The FWC may decide at any time (including before, during or after

conducting a conference in relation to a matter) to hold a hearing in

relation to the matter.

536NH Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for

an order under Division 3 if the FWC is satisfied that the applicant

has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a

hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC

relating to the application; or

agreement has been concluded.

Note:

For another power of the FWC to dismiss applications for orders

under Division 3, see section 587.

(2) The FWC may exercise its power under subsection (1) on

application by a party to the matter or an organisation entitled to

represent the industrial interests of a party to the matter.

(3) This section does not limit when the FWC may dismiss an

application.

536NJ Appeal rights

(1) Despite subsection 604(2), the FWC must not grant permission to

appeal from a decision made by the FWC under this Part unless the

FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the

FWC in relation to a matter arising under this Part can only, to the

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

196

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

extent that it is an appeal on a question of fact, be made on the

ground that the decision involved a significant error of fact.

536NK Contravening orders under this Part

A person must not contravene an order under this Part.

Note:

This section is a civil remedy provision (see Part 4-1).

Division 4

Consequential amendments

Fair Work Act 2009

250 After paragraph 3(c)

Insert:

(ca) ensuring a safety net of fair and relevant minimum terms and

conditions for regulated workers through enforceable

minimum standards orders and related measures; and

(cb) providing appropriate remedies in relation to unfair terms of

services contracts; and

251 After paragraph 4(1)(b)

Insert:

(ba) provides for minimum terms and conditions for regulated

workers (Chapter 3A); and

(bb) sets out measures to deal with unfair terms of services

contracts (Chapter 3A); and

252 At the end of subsection 4(2)

Add:

; (c) certain matters relating to the road transport industry

(Part 1-4).

253 After section 6

Insert:

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

197

6A Rights and responsibilities of regulated workers, regulated

businesses, organisations etc. (Chapter 3A)

(1) Chapter 3A sets out rights and responsibilities of certain regulated

workers who perform work under services contracts, and of certain

regulated businesses, organisations and others.

(2) Part 3A-1 has the core provisions for the Chapter. It deals with

compliance with the instruments made under the Chapter

(minimum standards orders, minimum standards guidelines and

collective agreements) and interaction issues.

(3) Part 3A-2 is about minimum standards orders and minimum

standards guidelines, which can be made for certain regulated

workers.

(4) Part 3A-3 deals with unfair termination and unfair deactivation of

certain regulated workers, and the granting of remedies when that

happens.

(5) Part 3A-4 is about collective agreements. A collective agreement is

made between a regulated business and an organisation. It provides

terms and conditions for those regulated workers to whom it

applies.

(6) Part 3A-5 is about unfair contract terms of services contracts. It

provides for certain remedies if a services contract includes an

unfair term.

254 Section 12 (after paragraph (b) of the definition of

applies

)

Insert:

(ba) in relation to a minimum standards order: see section 536JD;

and

(bb) in relation to a collective agreement: see section 536JL; and

255 Section 12

Insert:

collective agreement

: see section 15B.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

198

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

consistent with the Digital Labour Platform Deactivation Code

see subsection 536LJ(3).

consistent with the Road Transport Industry Termination Code

see subsection 536LN(3).

consultation notice

for a collective agreement: see

subsection 536ML(1).

contractor high income threshold

: see section 15C.

256 Section 12 (after paragraph (c) of the definition of

covers

)

Insert:

(ca) in relation to a minimum standards order: see section 536JE;

and

(cb) in relation to minimum standards guidelines: see

section 536JG; and

(cc) in relation to a collective agreement: see section 536JM; and

256A Section 12

Insert:

deactivated

: see section 536LG.

digital labour platform

: see section 15L.

Digital Labour Platform Deactivation Code

means the code made

under subsection 536LJ(1).

digital labour platform operator

: see section 15M.

digital platform work

: see section 15N.

employee-like worker

: see section 15P.

employee-like worker collective agreement

: see

subsection 536MK(4).

employee-like worker guidelines

: see subsection 536KR(2).

employee-like worker minimum standards order

: see

subsection 536JY(2).

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

199

257 Section 12 (paragraph (d) of the definition of

fair work

instrument)

After "order", insert ", including a minimum standards order but not

including minimum standards guidelines, even if the guidelines are

made by order".

258 Section 12

Insert:

minimum standards guidelines

: see section 15D.

minimum standards objective

: see section 536JX.

minimum standards order

: see section 15E.

protected from unfair deactivation

: see section 536LD.

protected from unfair termination

: see section 536LE.

regulated business

see section 15F.

regulated road transport contractor

: see section 15Q.

regulated worker

see section 15G.

Road Transport Advisory Group

: see section 40E.

road transport business

: see section 15R.

road transport collective agreement

: see subsection 536MK(5).

road transport guidelines

: see subsection 536KR(3).

road transport industry

: see section 15S.

road transport industry contractual chain participant

: see

section 40H.

Road Transport Industry Termination Code

means the code made

under subsection 536LN(1).

road transport minimum standards order

: see

subsection 536JY(3).

services contract

: see section 15H.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

200

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

terminated

: see section 536LL.

unfairly deactivated

: see section 536LF.

unfairly terminated

: see section 536LK.

unfairness ground

: see section 536JR.

259 Section 12 (paragraph (b) of the definition of

workplace

instrument

)

Repeal the paragraph, substitute:

(b) concerns the relationships between:

(i) employers and employees; or

(ii) digital labour platform operators and employee-like

workers; or

(iii) road transport businesses and regulated road transport

contractors.

260 After section 19

Insert:

19A Meaning of

industrial action

: regulated workers

(1) This section applies to a regulated worker and to a regulated

business if:

(a) the regulated worker is covered by a minimum standards

order, or is mentioned in an application for a minimum

standards order as a regulated worker who would be covered

by the order if it is made; and

(b) the regulated business is covered by the same minimum

standards order, or is mentioned in an application for the

same minimum standards order as a regulated business that

would be covered by the order if it is made; and

operator

the regulated worker is an employee-like worker:

(i) from whom the digital labour platform operator receives

services under a services contract; or

(ii) who performs services under a services contract that

was arranged or facilitated through or by means of the

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

201

digital labour platform operated by the digital labour

platform operator; and

(d) if the regulated business is a road transport business

the

regulated road transport contractor performs work under the

services contract for the regulated business.

(2)

Industrial action

, in relation to the regulated worker and the

regulated business, means action of any of the following kinds:

(a) the performance of work under the services contract by the

regulated worker in a manner different from that in which it

is customarily performed, or the adoption of a practice in

relation to work by the regulated worker, the result of which

is a restriction or limitation on, or a delay in, the performance

of the work;

(b) a ban, limitation or restriction on the performance of work

under the services contract by the regulated worker or on the

acceptance of or offering for work by the regulated worker;

under the services contract or, if the regulated worker attends

for work, a refusal to perform any work at all;

(d) the lockout of the regulated worker by the regulated business.

(3) The action referred to in paragraph (2)(a), (b) or (c) must be

directed against the regulated business (whether or not the

regulated business is a party to the services contract).

(4) However, industrial action does not include the following:

(a) action by a regulated worker that is authorised or agreed to

by the regulated business that is covered by the same

minimum standards order as the regulated worker;

(b) action by a regulated business referred to in paragraph (2)(d)

that is authorised or agreed to by, or on behalf of, regulated

workers covered by the same minimum standards order as

the regulated business;

(i) the action was based on a reasonable concern of the

regulated worker about an imminent risk to the health or

safety of the regulated worker; and

(ii) the regulated worker did not unreasonably fail to

comply with a direction of the regulated business to

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

202

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

perform other available work, whether at the same or

another workplace, that was safe and appropriate for the

regulated worker to perform.

(5) A regulated business

locks out

a regulated worker if either or both

of the following apply:

(a) the regulated business prevents the regulated worker from

performing work under a services contract without

terminating the contract;

(b) if the regulated business is a digital labour platform operator

and the regulated worker is an employee-like worker

the

digital labour platform operator modifies, limits or suspends

the employee-

like worker's access to a digital labour

platform operated by the digital labour platform operator.

261 Subsection 134(2) (note)

Omit "Note", substitute "Note 1".

262 At the end of subsection 134(2)

Add:

Note 2:

Further, the FWC must take into account the road transport objective

when performing certain functions: see section 40D and

subsection 617(10B).

263 After section 338

Insert:

338A Meaning of

independent contractor

A reference in this Part to an independent contractor includes a

reference to a regulated worker.

Note:

A regulated worker must be an individual: see section 15G and related

definitions.

264 Subsection 342(1) (after table item 3)

Insert:

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

203

a digital labour platform operator

that has entered into a contract with

an employee-like worker for use of,

or access to, a digital labour

platform against the employee-like

worker

the digital labour platform operator:

(a) terminates the contract; or

(b) injures the employee-like

worker in relation to the terms

and conditions of the contract;

employee-like worker to the

employee-

like worker's

prejudice; or

(d) refuses to make use of, or agree

to make use of, services offered

by the employee-like worker; or

(e) refuses to provide to the

employee-like worker use of or

access to the digital labour

platform.

265 Subsection 342(1) (after table item 4)

Insert:

a digital labour platform operator

that proposes to enter into a contract

with an employee-like worker for

use of, or access to, a digital labour

platform against the employee-like

worker

the digital labour platform operator:

(a) refuses to agree to provide to the

employee-like worker use of, or access

to, the digital labour platform; or

(b) discriminates against the employee-like

worker in relation to the terms and

conditions on which the digital labour

platform operator agrees to provide to

the employee-like worker use of, or

access to, the digital labour platform;

make use of, services offered by the

employee-like worker.

266 Subsection 342(1) (after table item 6)

Insert:

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

204

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

an employee-like worker against a

digital labour platform operator that

has entered into a contract with the

employee-like worker for use of, or

access to, a digital labour platform

the employee-like worker takes

industrial action against the digital

labour platform operator.

267 Subsection 342(1) (at the end of the table)

Add:

an industrial association, or an

officer or member of an industrial

association, against an

employee-like worker

the industrial association, or the

officer or member of the industrial

association, takes action that has

the effect, directly or indirectly, of

prejudicing the employee-like

worker in relation to a contract for

use of, or access to, a digital labour

platform.

268 After subsection 350(2)

Insert:

(2A) A regulated business must not induce a regulated contractor to

take, or propose to take, membership action.

Note:

This subsection is a civil remedy provision (see Part 4-1).

269 At the end of section 354

Add:

(3) A person must not discriminate against a regulated business

because:

(a) regulated workers in relation to the regulated business are

covered, or not covered, by a particular type of workplace

instrument (including a particular kind of workplace

instrument within a type of workplace instrument); or

(b) it is proposed that regulated workers in relation to the

regulated business are covered, or not covered, by a

particular type of workplace instrument (including a

particular kind of workplace instrument within a type of

workplace instrument).

Note:

This subsection is a civil remedy provision (see Part 4-1).

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

205

270 Subsection 539(2) (table item 11, column 1)

After

350(2)

, i

nsert "350(2A)".

271 Subsection 539(2) (table item 11, column 1)

After "354(1), insert "354(3)".

272 Subsection 539(2) (after table item 29AA)

Insert:

Part 3A-2

Minimum standards for regulated workers

29A

536JB

(a) a regulated

worker covered

by the relevant

minimum

standards order;

(b) a regulated

business covered

by the relevant

minimum

standards order;

(d) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit and

Family Court

of Australia

(Division 2);

State or

Territory court

for a serious

contravention

600 penalty

units; or

otherwise

penalty units

Part 3A-3

Unfair deactivation and unfair termination

29A

536MG

(a) a party to the

relevant services

contract;

(b) a digital labour

platform operator

that arranged or

facilitated entry

into the relevant

services contract;

(d) an inspector

(a) the Federal

Court;

(b) the Federal

Circuit and

Family Court

of Australia

(Division 2);

State or

Territory court

60 penalty

units

Part 3A-4

Collective agreements

29A

536JJ

(a) a regulated

worker covered

by the collective

agreement;

(a) the Federal

Court;

(b) the Federal

Circuit and

for a serious

contravention

600 penalty

units; or

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

206

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(b) a regulated

business covered

by the collective

agreement;

Family Court

of Australia

(Division 2);

State or

Territory court

otherwise

penalty units

Part 3A-5

Unfair contract terms of services contracts

29A

536NK

(a) a party to the

relevant services

contract;

(b) an organisation;

(a) the Federal

Court;

(b) the Federal

Circuit and

Family Court

of Australia

(Division 2);

State or

Territory court

60 penalty

units

273 After subsection 540(7)

Insert:

Regulated workers and regulated businesses

(7A) The following persons may apply for an order under this Division,

in relation to a contravention or proposed contravention of a civil

remedy provision, only if the person is affected by the

contravention, or will be affected by the proposed contravention:

(a) a regulated worker;

(b) a regulated business.

Parties to services contracts

(7B) A person who is a party to a services contract to which an order

under Division 4 of Part 3A-5 relates may apply for an order under

this Division, in relation to a contravention or proposed

contravention of a civil remedy provision, only if the person is

affected by the contravention, or will be affected by the proposed

contravention.

274 After paragraph 557(2)(oa)

Insert:

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

207

(ob) section 536JB (which deals with contraventions of minimum

standards orders);

(oc) section 536JJ (which deals with contraventions of collective

agreements);

(od) section 536NK (which deals with contraventions of orders

under Division 4 of Part 3A-5);

275 After paragraph 576(1)(m)

Insert:

(ma) minimum standards for regulated workers (Part 3A-2);

(mb) unfair deactivation or unfair termination of regulated workers

(Part 3A-3);

(mc) collective agreements for regulated workers (Part 3A-4);

(md) unfair contract terms of services contracts (Part 3A-5);

276 After paragraph 581(b)

Insert:

; and (c) adequately serves the needs of persons covered by

Chapter 3A.

277 After paragraph 582(4)(ab)

Insert:

(ac) a direction about the exercise of powers under Part 3A-2

(which deals with minimum standards for regulated

workers);

278 Paragraph 582(4)(c)

Omit "or one or more Full Benches", insert ", one or more Full Benches

or one or more Expert Panels".

279 Before subsection 582(5)

Insert:

(4D) In addition to giving a direction of a general nature under

subsection (2), the President must give a direction as to how the

FWC is to prioritise its work under Part 3A-2 including, but not

limited to, prioritising specified cohorts of workers.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

208

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(4E) The FWC must publish a direction under subsection (4D) on the

FWC's website, or by any other means that the FWC considers

appropriate, as soon as reasonably practicable after the President

gives the direction.

280 Subsection 587(2)

After "365", insert ", 536LU".

281 Subsection 602(1)

Omit "or national minimum wage order", substitute ", national

minimum wage order, minimum standards order or minimum standards

guidelines".

282 At the end of subsection 602(1)

Add:

Note 3:

The FWC corrects minimum standards orders and minimum standards

guidelines under subsections 536KQ(3) and 536KZ(3).

283 After paragraph 603(3)(g)

Insert:

(ga) a decision under Part 3A-2 (which deals with minimum

standards orders);

(gb) a decision under Part 3A-4 (which deals with collective

agreements);

284 Subsection 604(2) (note)

After "section

400)", insert "or for an unfair deactivation or an unfair

termination (see section 536MA

)".

285 Subsection 616(1)

Omit "subsection

617(8)", substitute "subsections

617(8) and (10B)".

286 Subsection 616(3B)

it "subsection

617(8)", substitute "subsections

617(8) and (10B)".

287 Subsections 616(3C) and (3D)

After "(9)"

(wherever occurring)

, insert ", (10B)".

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

209

288 After subsection 616(4)

Insert:

Minimum standards orders

(4A) Subject to subsections 582(4A) and 617(10D), the following must

be made under Chapter 3A by a Full Bench:

(a) an employee-like worker minimum standards order;

(b) a determination under subsection 536KQ(1) varying or

revoking an employee-like worker minimum standards order;

(d) a determination under subsection 536KZ(1) varying or

revoking employee-like worker minimum standards

guidelines.

Note 1:

A determination under subsection 536KQ(3) or 536KZ(3) (which deal

with minor technical variations) does not need to be made by a Full

Bench.

Note 2:

Subsection 617(10D) provides for the President to direct that certain

matters relating to the road transport industry be dealt with by an

Expert Panel for the road transport industry.

289 Paragraph 622(2)(aa)

Omit "or (1D)", substitute ", (1D) or (1E)".

290 Subparagraph 622(2)(aa)(ii)

Omit "or paragraphs

(1D)(b) and (c)", substitute ", paragraphs

(1D)(b)

and (c) or paragraph (

1E)(b)".

291 Subsection 622(4)

Omit "or (1D)", substitute ", (1D) or (1E)".

292 Subsection 622(4)

Omit "or paragraphs

(1D)(b) and (c)", substitute ", paragraphs

(1D)(b)

and (c) or paragraph (

1E)(b)".

293 At the end of subsection 627(4)

Add:

; (k) the road transport industry.

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

210

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

294 After paragraph 675(2)(k)

Insert:

; (l) a minimum standards order;

(m) an order made under regulations under section 40J (which

deals with the road transport industry contractual chain).

295 Paragraph 682(1)(a)

After "employers,", insert "regulated workers, regulated businesses,".

296 Paragraph 682(1)(f)

After "employees" (wherever occurring), insert ", regulated workers,".

297 At the end of section 682

Add:

(3) The Fair Work Ombudsman has the function of providing

education, assistance and advice to regulated workers, regulated

businesses and organisations, and producing best practice guides,

in relation to minimum standards guidelines.

298 After subparagraph 712AA(1)(a)(vii)

Insert:

(viia) the underpayment of monetary entitlements under a

minimum standards order; or

(viib) the unfair deactivation of an employee-like worker or

the unfair termination of a regulated road transport

contractor; or

299 After paragraph 716(1)(fa)

Insert:

(fb) a term of a minimum standards order;

299A At the end of Part 6-1

Add:

Main amendments

Schedule 1

Provisions relating to regulated workers

Part 16

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

211

Subdivision E

Services contract actions

734C Limitation on applications for review of services contracts

other proceedings in progress

(1) An application to review a services contract under Division 4 of

Part 3A-5 (unfair contract terms) must not be made if other review

proceedings have been commenced in relation to the services

contract, unless the other review proceedings:

(a) have been discontinued by the person who commenced them;

(b) have failed for want of jurisdiction.

(2) A person must not commence other review proceedings in relation

to a services contract if an application to review the contract has

been made under Division 4 of Part 3A-5, unless:

(a) the application has been discontinued by the person who

made it; or

(b) the proceedings in relation to the application have failed for

want of jurisdiction.

(3) In this section:

other review proceedings

means:

(a) proceedings under a provision of a law of a State or Territory

that makes provision as mentioned in paragraph 536JP(1)(c)

and is not affected by the exclusion provisions; or;

(b) proceedings in relation to a services contract under a

provision of a law of the Commonwealth, or of a State or

Territory, that is specified in regulations made for the

purposes of this paragraph.

300 Section 735

After "their employers", insert "and regulated workers and regulated

businesses".

301 Section 735

After "agreement", insert ", instrument made under

Chapter 3

A".

Schedule 1

Main amendments

Part 16

Provisions relating to regulated workers

212

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

302 After paragraph 738(b)

Insert:

(ba) a minimum standards order includes a term that provides a

procedure for dealing with disputes; or

(bb) a collective agreement includes a term that provides a

procedure for dealing with disputes; or

303 At the end of section 738

Add:

; (e) an order made under regulations under section 40J (which

deals with the road transport industry contractual chain)

includes a term that provides a procedure for dealing with

disputes.

304 Section 796A

After "functions", insert "or powers".

305 At the end of section 798

Add:

(3) Subsection (2) does not apply to civil penalties for a contravention

of regulations under section 40J, or an order made under

regulations under section 40J.

Division 5

Amendment of the Independent Contractors

Act 2006

Independent Contractors Act 2006

306 After subsection 12(2)

Insert:

(2A) An application must not be made in relation to a services contract

unless, in the year the application is made, the sum of the

independent contractor's annual rate of earnings, and such other

amounts (if any) worked out in relation to the person in accordance

with the regulations made for the purposes of subsection 536ND(2)

of the

Fair Work Act 2009

, is more than the contractor high income

threshold within the meaning of the

Fair Work Act 2009

Main amendments

Schedule 1

Application and transitional provisions

Part 18

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

215

Part

18--Application and transitional provisions

Fair Work Act 2009

308 At the end of Schedule 1

Add:

Part

15--Main amendments made by the Fair

Work Legislation Amendment (Closing

Loopholes) Act 2023

Division

1--Definitions

91 Definitions

In this Part:

amended Act

means this Act as amended by the

Fair Work

Legislation Amendment (Closing Loopholes) Act 2023

amending Act

means the

Fair Work Legislation Amendment

(Closing Loopholes) Act 2023

Division

2--Amendments made by Part

1 of Schedule

1 to

the amending Act

92 Resolving uncertainties and difficulties about interaction between

fair work instruments and the definition of casual

employee and employee choice

(1) The FWC may make a determination varying a fair work

instrument that is a modern award, enterprise agreement or

workplace determination that was made before the commencement

of this clause:

(a) for an enterprise agreement or workplace determination

application by an employer, employee or employee

Schedule 1

Main amendments

Part 18

Application and transitional provisions

216

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

organisation covered by the enterprise agreement or

workplace determination; or

(b) for a modern award:

(i) by the FWC on its own initiative; or

(ii) on application by an employer organisation or employee

organisation entitled to represent the industrial interests

of an employer or employee covered by the award.

(2) The FWC may make a determination varying the instrument:

(a) to resolve an uncertainty or difficulty relating to the

interaction between the instrument and any of the following:

(i) the definition of casual employee in section 15A of the

amended Act (including to deal with uncertainty or

difficulty arising from the circumstances in which

employees are to be employed as casual employees

under the agreement);

(ii) the provisions of Division 4A of Part 2-2 of the

amended Act; or

(b) to make the instrument operate effectively with that section

or those provisions.

(3) A variation of a fair work instrument under this clause operates

from the day specified in the determination, which may be a day

before the determination is made.

(4) If the determination relates to a modern award, the FWC must

publish the award as varied as soon as practicable on the FWC's

website or by any other means the FWC considers appropriate.

93 Application of amendments

Application of definition of casual employee

(1) Section 15A of the amended Act applies on and after

commencement in relation to employment relationships entered

into before, on or after commencement.

(2) Despite subclause (1), for the purposes of applying section 15A of

the amended Act on and after commencement in relation to

employment relationships entered into before commencement:

Main amendments

Schedule 1

Application and transitional provisions

Part 18

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

217

(a) conduct of an employer and employee that occurred before

commencement is to be disregarded for the purposes of

applying subsections 15A(2) and (3) in relation to that

employee; and

(b)

if an employee's contract of employment immediately before

commencement included a term of a kind referred to in

subsection 15A(4)

that subsection is taken not to apply in

relation to the employee for the remainder of the term of that

contract.

Continuing casual employees

(3) For the purposes of subclause (1), an employee who was,

immediately before commencement, a casual employee of an

employer within the meaning of section 15A as in force at that

time, is taken to be a casual employee of the employer within the

meaning of section 15A of the amended Act on and after

commencement.

(4) An employer of an employee referred to in subclause (3) must,

despite subsection 125B(2), give the employee a Casual

Employment Information Statement within 3 months after

commencement.

Application of employee choice and casual conversion provisions

(5) The amendments of Division 4A of Part 2-2 made by the amending

Act apply on and after commencement in relation to employment

relationships entered into before, on or after commencement

(6) For the purposes of applying subclause (5) in relation to

employment relationships entered into before commencement, any

period of employment as a casual employee that occurred before

commencement is to be disregarded for the purposes of paragraphs

66AAB(c) and (d) of the amended Act.

(7) Despite subclause (5), sections 66M and 739 as in force

immediately before commencement continue to apply to disputes

relating to the operation of Division 4A of Part 2-2 that arose

before that commencement.

Schedule 1

Main amendments

Part 18

Application and transitional provisions

218

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Definitions

(8) In this clause:

commencement

means the commencement of Part 1 of Schedule 1

to the amending Act.

94 Transitional provision

For the purposes of applying section 66L of this Act during the

period beginning when this clause commences and ending when

Part 1 of Schedule 1 to the amending Act commences, the

reference to "this Division"

in that provision is taken to include a

reference to that Division as amended by that Part.

Division

3--Amendments made by Part

2 of Schedule

1 to

the amending Act

95 Application

section 121

Despite the amendment made by item 28 of Part 2 of Schedule 1 to

the amending Act, section 121, as in force immediately before the

commencement of that item, continues to apply in relation to the

termination of an employee's employment if any of the following

occurred before that commencement:

(a) the termination of the employee;

(b) any other termination covered by that section as amended

that caused the employer to become a small business

employer.

Division

4--Amendments made by Part

4 of Schedule

1 to

the amending Act

96 Replacement agreements

(1) Subsections 58(4) and (5), as inserted by the amending Act, apply

in relation to single-enterprise agreements made after the

commencement of Part 4 of Schedule 1 to that Act, whether the

single interest employer agreement or supported bargaining

agreement was made before or after that commencement.

Main amendments

Schedule 1

Application and transitional provisions

Part 18

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

219

(2) Section 180B and subsection 240A(4), as inserted by the amending

Act, apply in relation to single interest employer agreements and

supported bargaining agreements whether made before or after the

commencement of Part 4 of Schedule 1 to that Act.

(3) Subsections 236(1B) and 238(2), as inserted by the amending Act,

apply in relation to applications made after the commencement of

Part 4 of Schedule 1 to that Act, whether the single interest

employer agreement or supported bargaining agreement was made

before or after that commencement.

97 Variation of supported bargaining authorisations

Subsection 245(2), as inserted by the amending Act, applies in

relation to enterprise agreements and workplace determinations

that come into operation before or after the commencement of

Part 4 of Schedule 1 to that Act.

98 Application of better off overall test to replacement agreements

Sections 193 and 193A, as amended by the amending Act, apply in

relation to single-enterprise agreements made on or after the

commencement of Part 4 of Schedule 1 to that Act, whether the

supported bargaining agreement or single interest employer

agreement was made before or after that commencement.

Division

5--Amendments made by Part

5 of Schedule

1 to

the amending Act

99 Model terms and enterprise agreements

(1) Despite the amendments made by Part 5 of Schedule 1 to the

amending Act, sections 202, 205 and 737, as in force immediately

before the commencement of that Part, continue to apply in

relation to an enterprise agreement if:

(a) before that commencement, the employer concerned asks the

employees to approve the agreement by voting for it; and

(b) by that vote, the employees approve the agreement; and

Schedule 1

Main amendments

Part 18

Application and transitional provisions

220

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(2) In deciding, after the commencement of that Part, whether to

approve the agreement mentioned in subclause (1) (in that form),

the FWC must disregard the amendments made by that Part.

100 Model terms and copied State instruments

Despite the amendments made by Part 5 of Schedule 1 to the

amending Act, section 768BK, as in force immediately before the

commencement of that Part, continues to apply in relation to a

model term that is taken, before that commencement, to be a term

of a copied State instrument.

101 Disallowance

model terms made before commencement

Section 42 (disallowance) of the

Legislation Act 2003

does not

apply to a determination made in the exercise of a power under

subsection 202(5), 205(3), 737(1) or 768BK(1A) of the amended

Act, before the commencement of Part 5 of Schedule 1 to the

amending Act, relying on subsection 4(1) of the

Acts Interpretation

Act 1901

Note:

Subsection 4(1) of the

Acts Interpretation Act 1901

provides for the

exercise of powers between the passing and commencement of an Act.

Division

6--Amendments made by Part

6 of Schedule

1 to

the amending Act

102 Application of amendments

regulated labour hire

arrangement orders

Application of requirement to pay protected rate of pay

(1) Section 306F of the amended Act (protected rate of pay payable to

employees if a regulated labour hire arrangement order is in force)

applies on and after 1 November 2024 regardless of whether any

agreement resulting in the performance of work by a regulated

employee is entered into before, on or after that day.

Main amendments

Schedule 1

Application and transitional provisions

Part 18

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

221

Anti-avoidance provisions apply retrospectively in relation to

certain conduct and schemes

(2) Division 4 of Part 2-7A of the amended Act (anti-avoidance)

applies, on and after the introduction day, in relation to:

(a) conduct engaged in; or

(b) a scheme that is entered into, begun to be carried out or

carried out;

on or after the introduction day.

(3) In this section:

introduction day

means the day on which the Bill for the amending

Act was introduced into the Parliament.

Division

7--Amendments made by Part

7 of Schedule

1 to

the amending Act

103 Application of section 149E of amended Act

(1)

Section 149E (delegates' rights terms) of the amended Act applies

in relation to a modern award that is in operation on or after 1 July

2024, whether or not the award was made before that day.

(2) However, a modern award is not invalid on or after 1 July 2024

only because it does not include a delegates' rights term

104 FWC to vary certain modern awards

(1) This clause applies in relation to a modern award if the award:

(a) is made before 1 July 2024; and

(b) is to be in operation on that day.

(2) The FWC must, by 30 June 2024, make a determination varying

the modern award to include a delegates' rights term

(3) A determination made under subclause (2) comes into operation on

(and takes effect from) 1 July 2024.

(4) Section 168 applies to a determination made under subclause (2) as

if it were a determination made under Part 2-3.

Schedule 1

Main amendments

Part 18

Application and transitional provisions

222

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

105 Application of section 205A of amended Act

(1) Section 205A (

enterprise agreements to include delegates' rights

terms etc.) of the amended Act does not apply in relation to an

enterprise agreement if:

(a) before 1 July 2024, the employer concerned asks the

employees to approve the agreement by voting for it; and

(b) by that vote, the employees approve the agreement; and

(2) In deciding, after 1 July 2024, whether to approve the agreement

mentioned in subclause (1) (in that form), the FWC must disregard

section 205A.

106 Application of subsections 273(6) and (7) of amended Act

(1) Subsections

273(6) and (7) (delegates' rights terms) of the

amended Act apply in relation to a workplace determination made

on or after 1 July 2024.

(2) However, a workplace determination is not invalid on or after

July 2024 only because it does not include a delegates' rights

term.

Division

8--Amendments made by Part

9 of Schedule

1 to

the amending Act

107 Application of amendments

Section 357, as amended by Part 9 of Schedule 1 to the amending

Act, applies in relation to representations made on or after the

commencement of that Part.

Division

9--Amendments made by Part

10 of Schedule

1 to

the amending Act

108 Application of amendments

right of entry

The amendments of subsection 510(1) made by Part 10 of

Schedule 1 to the amending Act apply in relation to each entry

Main amendments

Schedule 1

Application and transitional provisions

Part 18

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

223

permit held by a permit holder whether issued before, on or after

the commencement of that Part.

Division

10--Amendments made by Part

11 of Schedule

to the amending Act

109 Penalties for contravention of civil remedy provisions

Changes to amounts of pecuniary penalties and serious

contraventions

(1) The amendments of Part 4-1 made by Division 1 of Part 11 of

Schedule 1 to the amending Act apply in relation to conduct

engaged in after the commencement of that Division.

(2) For the purposes of section 557, conduct engaged in before that

commencement cannot constitute the same course of conduct as

conduct engaged in after that commencement.

Changes relating to underpayments

(3) The amendments of Part 4-1 made by Division 3 of Part 11 of

Schedule 1 to the amending Act apply in relation to conduct

engaged in after the commencement of that Division.

(4) For the purposes of section 557, conduct engaged in before that

commencement cannot constitute the same course of conduct as

conduct engaged in after that commencement.

Division

11--Amendments made by Part

14 of Schedule

to the amending Act

110 Offence relating to failure to pay certain amounts as required

Subsection 327A(1) of the amended Act applies in relation to

conduct that occurs after the commencement of Part 14 of

Schedule 1 to the amending Act, including conduct that occurs

after that commencement that is part of a course of conduct that

began before that commencement.

Schedule 1

Main amendments

Part 18

Application and transitional provisions

224

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

Part

16--Amendments made by Part

15 of

Schedule

1 to the Fair Work Legislation

Amendment (Closing Loopholes) Act 2023

Division

1--Definitions

112 Definitions

In this Part:

amended Act

means this Act as amended by the

Fair Work

Legislation Amendment (Closing Loopholes) Act 2023

amending Act

means the

Fair Work Legislation Amendment

(Closing Loopholes) Act 2023

commencement

means the commencement of item 237 of Part 15

of Schedule 1 to the amending Act.

old Act

means this Act as in force immediately before

commencement.

Division

2--Transitional provisions

113 Relationships in existence as at commencement or entered into

on or after commencement

(1) Subject to this Schedule, section 15AA of the amended Act applies

on and after commencement to the following:

(a) a relationship between an individual and a person entered

into before commencement that is in existence as at

commencement;

(b) a relationship between an individual and a person entered

into on or after commencement.

(2) Despite section 40A, section 7 of the

Acts Interpretation Act 1901

as in force from time to time, applies in relation to the amendment

made by item 237 of Part 15 of Schedule 1 to the amending Act.

Note:

Section 7 of the

Acts Interpretation Act 1901

provides for the effect of

amendment and repeal of provisions of Acts, including in relation to

Main amendments

Schedule 1

Application and transitional provisions

Part 18

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

225

rights, liabilities, penalties and forfeitures etc. accrued or incurred

before the repeal.

114 References to employees etc. in fair work instruments made

before commencement

(1) This clause applies to a fair work instrument that:

(a) was made before commencement; and

(b) is in operation on or after commencement.

(2) A reference in the fair work instrument to an employee or an

employer is taken, on and after commencement, to include a

reference to an employee or an employer, as the case requires,

within the meaning of section 15AA of the amended Act.

115 Entitlements determined by reference to length of a period of

employment etc.

(1) This clause applies if:

(a) immediately before commencement, an individual was not an

employee of a person within the ordinary meaning of that

expression; and

(b) because of the operation of section 15AA of the amended

Act, on commencement, the individual becomes an employee

of the person, within the ordinary meaning of that expression,

in respect of that relationship.

(2) For the purposes of determining whether the individual has a right

or entitlement under the amended Act or under a fair work

instrument in respect of the employment of the individual, being a

right or entitlement calculated by reference to:

(a)

the individual's length of service (however described) as an

employee; or

(b) a minimum period of employment (however described) of the

individual;

the nature of the relationship between the individual and the person

in respect of a period or periods before commencement is to be

ascertained in accordance with the old Act.

Schedule 1

Main amendments

Part 18

Application and transitional provisions

226

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

116 Old Act applies to proceedings on foot as at commencement

(1) Despite the amendment made by item 237 of Part 15 of Schedule 1

to the amending Act, the old Act continues to apply, on and after

commencement, as if that amendment had not been made, in

relation to the following:

(a) an application made, or proceedings on foot, as at

commencement, other than an application or proceedings

prescribed by the regulations;

(b) an application for review of, or an appeal relating to, an

application or proceedings referred to in paragraph (a)

(whether the application for review was made, or the appeal

proceedings were brought, before, on or after

commencement).

(2) For the purposes of paragraph (1)(a), an application or proceedings

are on foot until all rights of review and appeal in relation to the

application or proceedings have expired or have been exhausted.

117 FWC power to deal with uncertainties or difficulties arising

from the operation of section 15AA of the amended Act

(1) The FWC may make a determination varying a fair work

instrument in order to resolve an uncertainty or difficulty relating

to the operation or effect of the fair work instrument, being an

uncertainty or difficulty arising as a result of, or in connection

with, the amendment made by item 237 of Part 15 of Schedule 1 to

the amending Act.

(2) The FWC may make a determination under subclause (1) varying a

modern award:

(a) on its own initiative; or

(b) on application by an employer, employee, organisation or

outworker entity covered by the modern award; or

the industrial interests of one or more employers or

employees covered by the modern award; or

(d) if the modern award includes outworker terms

application by an organisation that is entitled to represent the

industrial interests of one or more outworkers to whom the

outworker terms relate.

Main amendments

Schedule 1

Application and transitional provisions

Part 18

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

227

(3) The FWC may make a determination under subclause (1) varying

an enterprise agreement or a workplace determination:

(a) on its own initiative; or

(b) on application by any of the following:

(i) one or more of the employers covered by the enterprise

agreement or workplace determination;

(ii) an employee covered by the enterprise agreement or

workplace determination;

(iii) an employee organisation covered by the enterprise

agreement or workplace determination.

(4) The FWC may make a determination under subclause (1) varying

an FWC order:

(a) on its own initiative; or

(b) on application:

(i) by a person affected by the order; or

(ii) if the FWC order is of a kind prescribed by the

regulations

by a person prescribed by the regulations

in relation to that kind of order.

(5) A variation of a fair work instrument under this clause operates

from the day specified in the determination, which may be a day

before the determination was made.

(6) The regulations may provide as follows:

(a) that this clause applies, or does not apply, to a specified fair

work instrument or a specified class of fair work instrument;

(b) that this clause applies, or does not apply, to a specified

uncertainty or difficulty, or a specified class of uncertainty or

difficulty.

Division

3--Regulations about transitional matters

118 General power for regulations to deal with transitional etc.

matters

(1) The regulations may make provisions of a transitional, application

or saving nature in relation to the amendment made by item 237 of

Part 15 of Schedule 1 to the amending Act.

Schedule 1

Main amendments

Part 18

Application and transitional provisions

228

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(2) The regulations may make provisions of a transitional, application

or saving nature in relation to the following:

(a) a person becoming an employer because of the amendment

made by item 237 of Part 15 of Schedule 1 to the amending

Act;

(b) an individual becoming an employee because of the

amendment made by item 237 of Part 15 of Schedule 1 to the

amending Act.

119 Other general provisions about regulations

(1) This clause applies to regulations made for the purposes of this

Part.

(2) Subsection 12(2) (retrospective application of legislative

instruments) of the

Legislation Act 2003

does not apply to the

regulations.

(3) If:

(a) regulations are expressed to commence from a date (the

registration date

) before the regulations are registered under

the

Legislation Act 2003

; and

(b) a person engaged in conduct before the registration date; and

would not have contravened a provision of this Act;

then a court must not convict the person of an offence, or order the

person to pay a pecuniary penalty, in relation to the conduct on the

grounds that it contravened a provision of this Act.

Part

17--Amendments made by Part

16 of

Schedule

1 to the Fair Work Legislation

Amendment (Closing Loopholes) Act 2023

Division

1--Definitions

120 Definitions

In this Part:

Main amendments

Schedule 1

Application and transitional provisions

Part 18

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

229

amended Act

means this Act as amended by the

Fair Work

Legislation Amendment (Closing Loopholes) Act 2023

amending Act

means the

Fair Work Legislation Amendment

(Closing Loopholes) Act 2023

commencement

means the commencement of item 238 of Part 16

of Schedule 1 to the amending Act.

old Act

means this Act as in force immediately before

commencement.

Division

2--Transitional provisions

121 Unfair deactivation and unfair termination

(1) Part 3A-3 (Unfair deactivation or unfair termination of regulated

workers) applies to a deactivation or termination that occurs after

commencement.

(2) For the purposes of determining under paragraph 536LD(c)

whether an employee-like worker has been performing work for a

period of at least 6 months, a period or periods before

commencement are not to be counted.

(3) For the purposes of determining under paragraph 536LE(c)

whether a regulated road transport contractor has been performing

work for a period of at least 12 months, a period or periods before

commencement are not to be counted.

122 New applications relating to unfair contracts

An application in relation to a services contract may be made under

section 536ND only if the contract was entered into on or after the

commencement of this item.

123 Services contracts entered into before commencement

(1) This section applies to a services contract entered into before

commencement.

(2) Despite the amendments of the

Independent Contractors Act 2006

made by the

Fair Work Legislation Amendment (Closing

Amendment of the Asbestos Safety and Eradication Agency Act 2013

Schedule 2

Main amendments

Part 1

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

231

Schedule

2--Amendment of the Asbestos

Safety and Eradication Agency Act

2013

Part

1--Main amendments

Asbestos Safety and Eradication Agency Act 2013

1 Title

Omit "

Asbestos

", substitute "

Asbestos and Silica

2 Section 1

Omit "

Asbestos Safety and Eradication Agency Act 2013

", substitute

Asbestos and Silica Safety and Eradication Agency Act 2013

Note:

This item amends the short title of the Act. If another amendment of the Act is

described by reference to the Act's previous short title, that oth

er amendment has effect

after the commencement of this item as an amendment of the Act under its amended

short title (see section 10 of the

Acts Interpretation Act 1901

3 Section 2A

Repeal the section, substitute:

2A Object of this Act

The object of this Act is to establish the Asbestos and Silica Safety

and Eradication Agency to lead coordinated and national action to

eliminate asbestos-related diseases and silica-related diseases in

Australia by:

(a) fostering collaboration between:

(i) persons and bodies involved in the regulation,

management and control of asbestos safety and silica

safety; and

(ii) persons and bodies involved in dealing with issues

related to asbestos-related diseases and silica-related

diseases; and

(b) supporting and monitoring the implementation of the

National Strategic Plans by the Commonwealth and State,

Territory and local governments; and

Schedule 2

Amendment of the Asbestos Safety and Eradication Agency Act 2013

Part 1

Main amendments

232

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

asbestos-related diseases, silica safety and silica-related

diseases; and

(d) improving the state of knowledge and awareness of issues

relating to asbestos safety, asbestos-related diseases, silica

safety and silica-related diseases.

4 Section 3 (definition of

Agency

)

Repeal the definition, substitute:

Agency

means the Asbestos and Silica Safety and Eradication

Agency referred to in section 6.

5 Section 3

Insert:

Asbestos and Silica Safety and Eradication Agency

means the

Agency referred to in section 6.

Asbestos and Silica Safety and Eradication Council

means the

Council referred to in section 28.

Asbestos National Strategic Plan

has the meaning given by

section 5A.

6 Section 3 (definition of

Asbestos Safety and Eradication

Council

)

Repeal the definition.

7 Section 3 (definition of

Chair

)

Omit "Asbestos Safety and Eradication"

8 Section 3

Insert:

Council

means the Asbestos and Silica Safety and Eradication

Council.

9 Section 3 (definition of

Council member

)

Omit "Asbestos Safety and Eradication"

Amendment of the Asbestos Safety and Eradication Agency Act 2013

Schedule 2

Main amendments

Part 1

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

233

10 Section 3 (definition of

National Strategic Plan

)

Repeal the definition.

11 Section 3

Insert:

National Strategic Plans

means the Asbestos National Strategic

Plan and the Silica National Strategic Plan.

Silica National Strategic Plan

has the meaning given by

section 5B.

silica safety

includes, but is not limited to, matters relating to

awareness, education and information sharing in relation to

respirable crystalline silica and products that contain silica.

12 Part 1A

Repeal the Part, substitute:

Part

1A--National Strategic Plans

5A Asbestos National Strategic Plan

(1) The

Asbestos National Strategic Plan

is the plan with that name

that:

(a) aims:

(i) to eliminate asbestos-related diseases in Australia by

preventing exposure to asbestos fibres; and

(ii) to support workers and others who are affected by

asbestos-related diseases; and

(b) represents a commitment to implement an agreed set of

strategic actions and national targets focussing on:

(i) identifying asbestos and preventing exposure risks,

including through prioritised safe removal and effective

waste management; and

(ii) improving awareness of asbestos safety and

asbestos-related diseases; and

Schedule 2

Amendment of the Asbestos Safety and Eradication Agency Act 2013

Part 1

Main amendments

234

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

No. , 2023

(iii) improving research and national data in relation to

asbestos safety and asbestos-related diseases; and

(iv) facilitating international collaboration in relation to

asbestos safety and asbestos-related diseases; and

(v) any other relevant priorities.

Note:

The

Asbestos National Strategic Plan

is available on the Agency's

website.

(2) The plan referred to in subsection (1) represents a commitment to

implement an agreed set of strategic actions and national targets

focussing on the priorities referred to in subparagraphs (1)(b)(i) to

(v) only if the plan has been agreed to by at least 6 of the

governments of the Commonwealth and each State and Territory.

5B Silica National Strategic Plan

(1) The

Silica National Strategic Plan

is the plan with that name that:

(a) aims:

(i) to eliminate silica-related diseases in Australia by

preventing exposure to respirable crystalline silica; and

(ii) to support workers and others who are affected by

silica-related diseases; and

(b) represents a commitment to implement an agreed set of

strategic actions and national targets focussing on:

(i) eliminating or minimising exposure to respirable

crystalline silica in workplaces; and

(ii) improving awareness of silica safety and silica-related

diseases; and

(iii) improving research and national data in relation to silica

safety and silica-related diseases; and

(iv) facilitating international collaboration in relation to

silica safety and silica-related diseases; and

(v) any other relevant priorities.

(2) The plan referred to in subsection (1) represents a commitment to

implement an agreed set of strategic actions and national targets

focussing on the priorities referred to in subparagraphs (1)(b)(i) to

(v) only if the plan has been agreed to by at least 6 of the

governments of the Commonwealth and each State and Territory.

Amendment of the Asbestos Safety and Eradication Agency Act 2013

Schedule 2

Main amendments

Part 1

No. , 2023

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

235

13 Part 2 (heading)

Repeal the heading, substitute:

Part

2--Asbestos and Silica Safety and Eradication

Agency

14 Section 6

Repeal the section, substitute:

6 Asbestos and Silica Safety and Eradication Agency

The body known immediately before the commencement of this

section as the Asbestos Safety and Eradication Agency is

continued in existence with the new name, Asbestos and Silica

Safety and Eradication Agency.

Note:

Commonwealth of Australia Bills

FAIR WORK LEGISLATION AMENDMENT (CLOSING LOOPHOLES) BILL 2023

Document Outline