FAIR WORK LEGISLATION AMENDMENT (CLOSING LOOPHOLES) BILL 2023 Explanatory Memorandum

Commonwealth of Australia Explanatory Memoranda

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FAIR WORK LEGISLATION AMENDMENT (CLOSING LOOPHOLES) BILL 2023

2022-2023 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES FAIR WORK LEGISLATION AMENDMENT (CLOSING LOOPHOLES) BILL 2023 SUPPLEMENTARY EXPLANATORY MEMORANDUM Amendments to be moved on behalf of the Government (Circulated by authority of the Minister for Employment and Workplace Relations, the Hon Tony Burke MP)

AMENDMENTS TO THE FAIR WORK LEGISLATION AMENDMENT (CLOSING LOOPHOLES) BILL 2023 OUTLINE These amendments amend the Fair Work Act 2009 (FW Act) and related legislation in Parts 1, 6, 7, 15 and 16 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Bill), insert new Part 14A to Schedule 1, amend Schedules 2 and 4 to the Bill, and insert new Schedule 5 to the Bill. The amendments would: • make clear that the existence of a regular pattern of work does not of itself indicate a firm advance commitment to continuing and indefinite work such that an employee is not a casual employee within the meaning of section 15A of the FW Act, and that no single consideration in paragraph 15A(2)(c) is determinative of the existence of a firm advance commitment to continuing and indefinite work • repeal the residual right to request casual conversion in Division 4A of Part 2-2 of the FW Act clarifying that eligible casual employees who wish to change to permanent employment would be able to do so by providing a notification to their employer • remove the prohibition on misrepresenting employment as casual employment by omitting section 359A in Part 1 of Schedule 1 to the Bill • provide that employees covered by a regulated labour hire arrangement order who have only worked for one regulated host throughout the duration of their employment would be entitled to have their termination payments calculated at the protected rate of pay under the order. Where an employee covered by an order has been placed with more than one host during their employment, the amendments would provide that payments on termination of their employment would be calculated according to their employer's enterprise agreement or employment instrument. Payment in lieu of notice of termination would be calculated at the protected rate of pay regardless of whether the employee has worked for one or more regulated hosts throughout the duration of their employment, where an employee's employment is terminated while they are undertaking work for a regulated host that is covered by an order • clarify that the Fair Work Commission (FWC) cannot make a regulated labour hire arrangement order if an arrangement about which an application for an order is brought is for the provision of a service, rather than the supply of labour. The FWC would be required to consider a list of factors in determining whether this is the case • allow the FWC to join additional employers to an application for a regulated labour hire arrangement order where it is satisfied that more than one employer is supplying or will supply employees to the regulated host to perform the same or similar work to which the application relates 1

• ensure that, circumstances where labour is supplied as part of a joint venture or common enterprise are appropriately captured and taken into account in assessing whether a regulated labour hire arrangement order should be made • provide that, if an enterprise agreement or other covered employment instrument specified in a regulated labour hire arrangement order is superseded by a new instrument, the new instrument is taken to be the relevant instrument for the purposes of the order and that regulated hosts would be subject to certain related notification requirements • require a regulated host to apply to the FWC to vary a regulated labour hire arrangement order where the employer listed on the order changes or the host employer enters into an agreement with a new employer to provide employees to provide work of the same kind as that covered by the order, whether as a result of a tender process or otherwise • provide a general anti-avoidance provision that applies where the employer or regulated host enters into or carries out a scheme for the sole or dominant purpose of avoiding a regulated labour hire arrangement order that is already in force • replace references to 'small business' in Part 7 of Schedule 1 to the Bill to refer instead to 'small business employer' to clarify that provisions providing an exception to small business employers from the obligation to provide workplace delegates reasonable access to paid time training operate with reference to the existing definition in the FW Act • change the commencement date of Part 15 of Schedule 1 to the Bill, containing the interpretive principle for determining the ordinary meaning of employee and employer, from the day after Royal Assent to 1 July 2024. This will ensure alignment between the commencement of this measure and related provisions in the Bill that apply in relation to 'employee-like' workers • amend the minimum standards objective to clarify the matters the FWC must have regard to when performing functions or exercising powers • amend terms that may be included in an employee-like minimum standards order (MSO) • provide circumstances where temporary deactivation from a digital labour platform would not be unfair • introduce new consultation requirements for employee-like MSOs • include new threshold requirements that must be met before the FWC makes or varies an employee-like MSO • provide that steps taken by a digital labour platform operator to comply with its obligations under Part 3A-3, the Digital Labour Platform Deactivation Code, and/or 2

orders made under Chapter 3A are not taken into account when assessing whether a worker is an employee, and provide that an employee-like worker to whom an MSO applies is not an employee • amend the FW Act to address concerns that a bargaining representative's non-compliance with a FWC order to attend a section 448A conference could render subsequent industrial action unprotected - for both those represented by the non-complying bargaining representative, and for others participating in the action • clarify the relationship between the new functions which will be conferred on the Asbestos Safety and Eradication Agency and the Commonwealth's powers under the Financial Framework (Supplementary Powers) Act 1997 • ensure provisions dealing with the appointment of the Board of Directors of the Coal Mining Industry (Long Service Leave Funding) Corporation reflect the withdrawal of the Mining and Energy Division from the Construction, Forestry, Maritime, Mining and Energy Union, which will occur on 1 December 2023 • add a new Part 8 to Schedule 4 to the Bill to amend the Work Health and Safety Act 2011 (Cth) to provide for a Family and Injured Workers Advisory Committee. FINANCIAL IMPACT STATEMENT The amendments have no direct financial impacts. 3

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 Amendments to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 1. A detailed statement of compatibility with human rights was prepared for the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Bill). 2. The amendments to the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Overview of amendments 3. The amendments to the Bill that are relevant to human rights are outlined below. Closing the labour hire loophole 4. The amendments would: • provide that employees covered by a regulated labour hire arrangement order who have only worked for one regulated host throughout the duration of their employment would be entitled to have their termination payments calculated at the protected rate of pay under the order. Where an employee covered by an order has been placed with more than one host during their employment, the amendments would provide that payments on termination of their employment would be calculated according to their employer's enterprise agreement or employment instrument. Payment in lieu of notice of termination would be calculated at the protected rate of pay regardless of whether the employee has worked for one or more regulated hosts throughout the duration of their employment, where an employee's employment is terminated while they are undertaking work for a regulated host that is covered by an order; • clarify that the Fair Work Commission (FWC) cannot make a regulated labour hire arrangement order unless it is satisfied that the performance of the work is not or will not be for the provision of a service, rather than the supply of labour. The FWC would be required to consider a list of factors in determining whether this is the case; • allow the FWC to join additional employers to an application for a regulated labour hire arrangement order where it is satisfied that more than one employer is supplying or will supply employees to the regulated host to perform the same or similar work to which the application relates; • ensure that circumstances where labour is supplied as part of a joint venture or common enterprise are appropriately captured and taken into account in assessing whether a regulated labour hire arrangement order should be made; • provide that, if an enterprise agreement or other covered employment instrument specified in a regulated labour hire arrangement order is superseded by a new instrument, the new instrument is taken to be the relevant instrument for the purposes of the order and that regulated hosts would be subject to certain related notification requirements; • require a regulated host to apply to the FWC to vary a regulated labour hire arrangement order where the employer listed on the order changes or the host employer enters into an agreement with a new employer to provide employees to 4

provide work of the same kind as that covered by the order, whether as a result of a tender process or otherwise; • provide a general anti-avoidance provision that applies where the employer or regulated host enters into or carries out a scheme for the sole or dominant purpose of avoiding a regulated labour hire arrangement order that is already in force. Provisions relating to regulated workers 5. The amendments would: • amend the minimum standards objective to clarify the matters the FWC must have regard to when performing functions or exercising powers; • amend terms that may be included in an employee-like minimum standards order (MSO); • provide circumstances where temporary deactivation from a digital labour platform would not be unfair; • introduce new consultation requirements for employee-like MSOs; • include new threshold requirements that must be met before the FWC makes or varies an employee-like MSO; • provide that steps taken by a digital labour platform operator to comply with its obligations under Part 3A-3, the Digital Labour Platform Deactivation Code, and/or orders made under Chapter 3A are not taken into account when assessing whether a worker is an employee, and provide that an employee-like worker to whom an MSO applies is not an employee. Mediation and conciliation conference orders 6. The amendments would address concerns that a bargaining representative's non-compliance with a FWC order to attend a conference pursuant to section 448A of the Fair Work Act 2009 (FW Act) could render subsequent industrial action unprotected - for both those represented by the non-complying bargaining representative, and for others participating in the action. Family and Injured Workers Advisory Committee 7. The amendments would add a new Part 8 to Schedule 4 to the Bill to amend the Work Health and Safety Act 2011 (Cth) (WHS Act) to provide for a Family and Injured Workers Advisory Committee. Human rights implications 8. The definition of 'human rights' in the Human Rights (Parliamentary Scrutiny) Act 2011 relates to the core seven United Nations human rights treaties. The Bill engages the following rights: • the right to the enjoyment of just and favourable conditions of work under Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); • the right to the highest attainable standard of physical and mental health under Article 12 of the ICESCR; 5

• the right to an effective remedy under Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR) and Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and right to a fair hearing under Article 14(1) of the ICCPR; and • the right to freedom of association, including the right to form and join trade unions under Article 22 of the ICCPR and Article 8 of the ICESCR. 9. The content of the right to work, the right to just and favourable conditions of work and the right to freedom of association in the ICESCR and ICCPR can be informed by specific obligations in treaties of the International Labour Organisation (ILO), such as the Right to Organise and Collective Bargaining Convention 1949 (No. 98) (ILO Convention 98), which protects the right of employees to collectively bargain for terms and conditions of employment, the Freedom of Association and Protection of the Right to Organise Convention 1948 (No. 87), which provides employer and employee organisations with protection for their organisational autonomy, and the Occupational Safety and Health Convention 1981 (No. 155), which requires the adoption of a coherent national policy on occupational safety, occupational health and the working environment. Rights to work and rights in work 10. Article 6 of the ICESCR requires the State Parties to the Covenant to recognise the right to work and to take appropriate steps to safeguard this right. The United Nations Committee on Economic, Social and Cultural Rights has stated that the right to work in Article 6(1) encompasses the need to provide the worker with just and favourable conditions of work. 11. Article 7 of the ICESCR requires the State Parties to the Covenant to recognise the right of everyone to the enjoyment of just and favourable working conditions. Closing the labour hire loophole 12. The amendments would positively engage the right to the enjoyment of just and favourable working conditions by ensuring that loopholes that may have resulted in some employees being paid less than others are closed. The amendments would prevent unfair discrepancies in amounts paid to employees performing the same or similar work as other employees, where the work performed is covered by a regulated labour hire arrangement order. 13. The amendments would further provide that employees may be joined to an application, even when they are not covered by a regulated labour hire arrangement order if the employees are employed by other employers who also supply the same or similar services to a regulated host. The amendments ensure that changes in the structure of the employer or the regulated host, changes to the commercial arrangements for the supply of labour, or changes to the covered employment instrument that applies as a result of the regulated labour hire arrangement order, do not result in employees becoming disentitled from receiving the protected rate of pay. 14. Penalties would apply to an employer or regulated host who would enter into a scheme to avoid the operation of a regulated labour hire arrangement order that has been made. This will ensure that employees who are covered by an order continue to enjoy just and favourable working conditions. 6

15. The amendments would also ensure that regulated employees are paid appropriately for any termination payments to which they are entitled. Provisions relating to regulated workers 16. Amendment 1 would engage the right to the enjoyment of just and favourable working conditions by excluding some steps taken by digital labour platform operators when determining whether a person is an employee under the FW Act and providing that certain persons are not employees in certain circumstances. However, to the extent that this amendment limits human rights for certain classes of workers, it is directed at achieving a legitimate objective and is necessary, reasonable and proportionate to achieving that objective. 17. The objective of this amendment is to provide certainty to digital labour platform operators about the status of their workers for the purpose of determining the workers' rights and entitlements. The amendment would ensure that steps taken by a digital labour platform operator to comply with its obligations under the new unfair deactivation provisions in Part 3A-3, or the Digital Labour Platform Deactivation Code (being the Code made by the Minister under section 536LJ) or an order made under, or for the purposes of, Chapter 3A, cannot be considered when determining whether the true nature and practical reality of the employment relationship is one of employment. This avoids a perverse outcome whereby acts of a digital labour platform to comply with the new employee-like provisions or orders made under them may otherwise have the effect of inadvertently creating an employment relationship. 18. The amendment would also ensure that a worker who has been found to be an 'employee- like worker' to whom a minimum standards order applies is not an employee in relation to particular digital platform work. This would provide certainty to digital labour platform operators that workers covered by these orders cannot later bring proceedings to recover unpaid employment entitlements. 19. The right to work includes the right to not be deprived of work unfairly. This right would be promoted by new Part 3A-3 which would be inserted by Part 16 of the Bill. 20. Amendment 17 would enable digital labour platform operators to temporarily suspend or modify a person's access to a digital labour platform for no longer than 7 business days for specified reasons. In doing so, the amendment provides certain permissible circumstances where a person may be deprived of work for a limited period. However, it would not enable a person to be deprived of work unfairly. 21. The amendments would only allow a short temporary suspension or modification of a person's access to a digital labour platform where the digital platform operator believes on reasonable grounds: • that it is necessary to protect the health and safety of users of the digital labour platform or a member of the community; • the person may have committed fraud, misrepresented or falsified information; • that the person has not complied with applicable licensing and accreditation requirements imposed by or under a law; 7

• that the suspension or modification of access is necessary to enable the digital labour platform operator to conduct an investigation, or refer the matter to a law enforcement agency for the purposes of conducting an investigation. 22. In these circumstances, a short suspension would ensure that appropriate steps can be taken to consider, investigate and/or escalate these matters. The requirement that the FWC needs to be satisfied that the operator believed at least one of these circumstances exists would further ensure a person who uses a digital labour platform is not deprived of work unfairly. 23. As such, this amendment engages the right to work but does not limit it. Family and Injured Workers Advisory Committee 24. The right to work includes the protection and promotion of the right to safe and healthy working conditions. Preventing serious work-related incidents resulting in death or serious injury or illness is fundamental to safeguarding that right. 25. The amendment would positively engage the right to work by protecting and promoting a safe and healthy workplace by creating the Family and Injured Workers Advisory Committee (Advisory Committee). The Advisory Committee will be primarily comprised of members with lived experiences of serious work-related incidents. The unique perspectives of lived experience members would inform the advice and recommendations the Advisory Committee gives to the Minister and Commonwealth regulators dealing with work health and safety (WHS) on policies, procedures and strategies concerning serious work-related incidents. This would contribute to more effective WHS policies and standards and promote the right to a safe and healthy workplace. Right to physical and mental health 26. Article 12 of the ICESCR requires that State Parties to the Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The United Nations Committee on Economic, Social and Cultural Rights has stated that the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, extending to underlying determinants of health such as safe and healthy working conditions. Family and Injured Workers Advisory Committee 27. Serious work-related incidents result in significant effects on the health and wellbeing of victims and their families. The Senate Inquiry report They never came home - the framework surrounding the prevention, investigation and prosecution of industrial deaths in Australia noted that the human impact of an industrial death is catastrophic and life-long. These impacts can be amplified while attempting to navigate formal processes such as investigations and prosecutions following a work-related death. 28. The amendment would positively engage the right to health by ensuring that the systems of support for workers and other persons (such as victim families) affected by a serious work- related incident are informed by lived experience perspectives. 29. The Advisory Committee will be primarily comprised of members with lived experiences of serious work-related incidents. The lived experiences of those members would inform advice and recommendations to the Minister and Commonwealth regulators dealing with 8

WHS about the support necessary for people impacted by serious workplace incidents. Improving engagement with, and support for, workers and their families following a serious work-related incident would assist them to achieve the highest attainable standard of health possible and promote the right to physical and mental health. Right to an effective remedy and a fair hearing 30. Article 2(3) of the ICCPR and Article 2 of the CEDAW provides the right to an effective remedy for persons who have suffered human rights violations by Australian authorities, as well as persons who have suffered discrimination perpetrated by Australian authorities. The United Nations Human Rights Committee has stated that the right to an effective remedy encompasses an obligation to bring to justice perpetrators of human rights abuses, including discrimination, and also to provide appropriate reparation to the persons who have suffered human rights abuses. Reparation can involve measures including compensation, restitution, rehabilitation, public apologies, guarantees of non-repetition and changes in relevant laws and practices. 31. Article 14(1) of the ICCPR provides that, in the determination of rights and obligations in a suit at law, all persons have a right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law. Closing the labour hire loophole 32. The amendments would positively engage the right to a fair remedy by ensuring that, where a regulated labour hire arrangement order has been made, it can be varied in a fair and reasonable way if the circumstances of the employer or regulated host change, while minimising the administrative burden on the parties. 33. The amendments would allow the FWC to join additional parties to an application for a regulated labour hire arrangement order where appropriate, including other employers who supply labour to the same host for the same or similar work. Where the FWC proposes to so join an employer as a new party to an application, the employer, their employees, and employee representatives representing the employees are each afforded the right to make submissions about whether the FWC should make an order applying to the joined parties. The FWC must take these submissions into account when determining whether to join parties to the application and whether to make any order relating to the joined parties. Freedom of association 34. Article 22 of the ICCPR protects the right to freedom of association, including the right to form and join trade unions. Article 8(1)(c) and (d) of the ICESCR also support the right to freedom of association by providing that States Parties undertake to ensure the right to form and join trade unions and the right to strike, including picketing activities. There are also specific obligations relating to freedom of association in the ILO's Freedom of Association and Protection of the Right to Organise Convention 1948 (No. 87) and Right to Organise and Collective Bargaining Convention 1949 (No. 98). Mediation and conciliation conference orders 35. On 6 June 2023, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (SJBP Act) made a number of changes to the process for applying for a protected action 9

ballot (PAB) order. Relevantly, the SJBP Act inserted section 448A into the FW Act, which provides that if the FWC has made a PAB order in relation to a proposed enterprise agreement, the FWC must make an order directing the bargaining representatives for the agreement to attend a conciliation conference during the PAB period. These amendments were intended to de-escalate disputes by providing an opportunity for parties to further negotiate and potentially resolve, or at least confine, matters in dispute. 36. In CEPU v Nilsen (NSW) Pty Ltd [2023] FWCFB 134, a Full Bench of the FWC considered the new provisions and noted (at [69]) that non-compliance with an order to attend a conciliation conference by one or more employee bargaining representatives could render subsequent employee claim action unprotected - for both those represented by the non- complying bargaining representative and for others participating in the action. 37. The amendments would enhance the right to freedom of association by removing this barrier that might prevent employees from engaging in employee claim action in circumstances where their bargaining representative has complied with an order to attend a conciliation conference. The amendments would only require the employee bargaining representative (or representatives) who applied for the PAB order to attend the conciliation conference in order for the subsequent employee claim action to be protected. If any other bargaining representative failed to attend the conference, this would not render subsequent employee claim action unprotected. 38. The amendments also positively engage the right to freedom of association by clarifying the circumstances in which an employer can engage in employer response action. The amendments would clarify that the employer organising or engaging in employer response action in response to employee claim action authorised by a PAB, or their bargaining representative, must attend the conciliation conference in order for the employer response action to be protected. Conclusion 39. The Bill is compatible with human rights because it promotes human rights, including civil, political, social, economic and labour rights. To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate. Minister for Employment and Workplace Relations, the Hon Tony Burke MP 10

NOTES ON AMENDMENTS In these notes on amendments, the following abbreviations are used: Abbreviation Definition Advisory Committee Family and Injured Workers Advisory Committee AI Act Acts Interpretation Act 1901 AMSA Australian Maritime Safety Authority ASEA Asbestos Safety and Eradication Agency Bill Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 Coal LSL Administration Coal Mining Industry (Long Service Leave) Administration Act Act 1992 Coal LSL Corporation Coal Mining Industry (Long Service Leave Funding) Corporation CFMMEU Construction, Forestry, Maritime, Mining and Energy Union Department Department of Employment and Workplace Relations ELGs Employee-like Worker Guidelines ELMSO Employee-like minimum standards order Federal Court Federal Court of Australia FW Act Fair Work Act 2009 FW Regulations Fair Work Regulations 2009 FWC Fair Work Commission Minister Minister for Employment and Workplace Relations M&E Division Mining and Energy Division MEU Mining and Energy Union National Principles National Principles to support families following an industrial death NES National Employment Standards 11

Abbreviation Definition NOPSEMA National Offshore Petroleum Safety and Environmental Management Authority OHS(MI) Act Occupational Health and Safety (Maritime Industry) Act 1993 PAB Protected action ballot RO Act Fair Work (Registered Organisations) Act 2009 Senate Inquiry They never came home - the framework surrounding the prevention, investigation and prosecution of industrial deaths in Australia SJBP Act Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 SWA Safe Work Australia WHS Work Health and Safety WHS Act Work Health and Safety Act 2011 WHS Regulations Work Health and Safety Regulations 2011 12

Casual employment Amendment 1: Schedule 1, item 1, page 6 (after line 17), at the end of subsection 15A(2) 40. This amendment would insert a note to new subsection 15A(2) to clarify that a regular pattern of work does not of itself indicate a firm advance commitment to continuing and indefinite work. That is, a casual employee who has a regular pattern of work may still be a casual employee if there is no firm advance commitment to continuing and indefinite work. 41. This amendment would provide clarity about the relevance of a regular pattern of work for employees and employers assessing whether an employment relationship has a firm advance commitment to continuing and indefinite work. Amendment 2: Schedule 1, item 1, page 6 (line 24) 42. This amendment would amend new paragraph 15A(3)(b) to clarify that no single consideration in new paragraph 15A(2)(c) is determinative of a firm advance commitment to continuing and indefinite work and not all the considerations listed in new paragraph 15A(2)(c) need to be satisfied to establish a firm advance commitment. 43. This amendment would provide clarity as to how the considerations at new paragraph 15A(2)(c) should be considered for the purposes of assessing whether an employment relationship has a firm advance commitment to continuing and indefinite work. 44. Together, these 2 amendments support the emphasis of the new objective definition in section 15A being on the totality of the employment relationship. A regular pattern of work neither automatically means the employee is casual, nor does it mean the employee is not casual. The assessment should consider the real substance, practical reality and true nature of the employment relationship, not a single factor in isolation. Illustrative examples Example 1: University student Quyen is a university student who obtains a casual bar attendant position at her local hotel. Quyen chooses to accept casual employment as she prefers the flexibility to accommodate university commitments and the 25 per cent casual loading. Upon commencement, Quyen and her employer have a discussion. Quyen advises her employer that she is available to work on Friday and Saturday nights only. Quyen advises that she is unavailable to work at any other time, due to study commitments. In response, the employer offers Quyen casual shifts each Friday and Saturday night, with Quyen able to reject any shifts if unavailable. This suits the employer's operational requirements and fits in with Quyen's advised availability. The employer explains to Quyen that there is no firm advance commitment to continuing and indefinite work in the business, which is reflected in a written employment contract. Quyen accepts the contract and commences work. 13

Irrespective of the offer of regular shifts to accommodate Quyen's university schedule, the employer has made no firm advance commitment to Quyen to continuing and indefinite work upon commencement; which means Quyen is correctly classified as a casual within the meaning of section 15A. After 6 months working with the local hotel, Quyen considers her circumstances and is happy to continue working as a casual employee each Friday and Saturday night when available, and decides not to give her employer written notice seeking to change from casual to part-time employment. Example 2: Mature age pensioner Barry has retired from full time work and is on the part pension. Barry is offered casual employment at Parliament House on the basis that his employer expects to be able to offer him shifts on sitting days. The Parliamentary calendar is provided to Barry upon commencement in November for the next year, although it is subject to change. Barry receives no guaranteed hours from the employer, nor a firm advance commitment that he will be offered casual shifts on every sitting day. This flexibility works well for Barry, as it provides him with the autonomy to accept or reject work so as not to impact on his pension. Barry is a casual employee upon commencement within the meaning of section 15A. Example 3: Firm advance commitment Alex accepts a casual position as a security guard at a shopping centre. The contract of employment Alex receives contains terms to the effect that they will be required to work rostered shifts each Thursday late night and at least one weekend day each week, and will be paid a 25 per cent loading. The contract communicates the firm advance commitment to continuing and indefinite work that Alex's employer makes to them. Due to the stated requirement for Alex to work those rostered shifts on Thursday evenings and over the weekend (as opposed to stating an expectation for their availability to work at peak trading times), it does not appear that Alex has the ability to elect to accept or reject work. The contract of employment does not include a term that provides the contract will terminate at the end of an identifiable period, or a term that limits the above requirement to work each Thursday night and one weekend day, to a specified season or period. These considerations indicate Alex's employment should be characterised as permanent part- time and not casual within the meaning of section 15A. If Alex questions their classification and they are found to have been misclassified as casual, amounts payable to Alex for relevant entitlements as a permanent employee can be reduced by an amount equal to the casual loading paid to them already. If Alex was mistakenly misclassified and the employer reasonably believed Alex would be correctly classified as a casual, no penalty would apply for misrepresentation. 14

Amendment 7: Schedule 1, item 11, page 11 (line 29) to page 12 (line 8) 45. This amendment would repeal sections 66F to 66J, which deal with an employee's residual right to request casual conversion. 46. This amendment would remove the existing pathway for eligible casual employees to request casual conversion. 47. Employees would be able to access the employee choice pathway to notify their employer if they no longer believe they are a casual employee where they have been employed with their employer for 6 months, or 12 months for employees of a small business. 48. This amendment would not impact on the existing requirement to offer conversion to eligible employees. Where an employee has been employed with their employer for 12 months, the employer (except small businesses) will still need to undertake an assessment under the existing casual conversion framework and, if the employee has worked a regular pattern of work during at least the last 6 months of that period, offer conversion or provide reasons for not doing so. 49. Small business employers are not required to make an offer of casual conversion under the existing framework. Casual employees employed by a small business will be able to access the employee choice pathway at 12 months of employment with their employer. 50. This amendment means that medium and large employers would retain the obligation to offer eligible employees conversion and employees would have one pathway to initiate a status change, the new employee choice pathway. Employees would have access to the new employee choice pathway and would only be eligible to issue a notification to their employer every 6 months in accordance with new paragraph 66AAB(d). Amendment 3: Schedule 1, item 6, page 9 (lines 15 to 18) Amendment 4: Schedule 1, item 7, page 11 (line 22) Amendment 5: Schedule 1, item 8, page 11 (lines 23 to 24) Amendment 6: Schedule 1, item 9, page 11 (lines 25 to 26) Amendment 8: Schedule 1, item 12, page 12 (lines 14 to 15) Amendment 9: Schedule 1, item 14, page 13 (lines 5 to 6) Amendment 10: Schedule 1, item 15, page 13 (line 19) Amendment 11: Schedule 1, item 15, page 14 (lines 18 to 19) Amendment 12: Schedule 1, item 15, page 15 (line 13) Amendment 13: Schedule 1, item 15, page 16 (line 10) Amendment 14: Schedule 1, item 15, page 17 (lines 12 to 25) 15

Amendment 15: Schedule 1, page 18 (after line 13), after item 18 51. These amendments are consequential to the repeal of sections 66F to 66J. Amendment 16: Schedule 1, item 21, page 19 (line 2 to 17) 52. This amendment would remove new section 359A, which prohibits misrepresenting employment as casual employment, from new subdivision B of Division 6 of Part 3-1. 53. Protections against the intentional misuse of casual employment will be retained, including dismissing an employee in order to re-engage them as a casual employee and knowingly making false statements to engage a person as a casual employee. Amendment 17: Schedule 1, item 23, page 20 (table item 11B, column 1) 54. This amendment would omit the reference to subsection 359A(1) from table item 11B in the table at subsection 539(2). This amendment is consequential to amendment 19. Amendment 18: Schedule 1, page 20 (after line 7), after item 23 55. This amendment would make a technical amendment to subparagraph 548(1B)(ii) and repeal subparagraphs 548(1B)(a)(iii) and (iv), consequential to the repeal of the residual right to request casual conversion. 56. It would also repeal the note at subsection 548(1B) and substitute a new note that notifies the reader that a court may make orders under Division 2 in relation to small claims proceedings requiring an employer to make an offer of conversion because the employee meets eligibility requirements, and that it is not open to an employer to rely on reasonable business grounds to not make an offer of casual conversion. Amendment 19: Schedule 1, item 308, page 217 (lines 25 to 33) 57. This amendment would omit new subclause 93(6) and 93(7) and substitute new subclauses 93(6), 93(6A), (6B) and 93(7). Subclause 93(6) provides that for employment relationships that are entered into prior to the commencement of Division 4A of Part 2-2, any period of employment that occurred before commencement will not count for the purposes of determining whether an employee has met the eligibility requirements at paragraphs 66AAB(c) and (d) concerning service accrued with a small business employer. 58. Subclause 93(6A) would provide that section 66F, the provision for requesting casual conversion, will continue to apply to employment relationships entered into prior to the commencement of Division 4A of Part 2-2 as amended by the Bill, for a period of 12 months from commencement for small business employers or 6 months from commencement for all other employers. 59. Subclause 93(6B) would provide that sections 66G to 66J, which set out the requirements for responding to a request for casual conversion under section 66F, will continue to apply after commencement in relation to requests made before commencement of Division 4A of 16

Part 2-2 as amended by the Bill, and to requests made after commencement by an employee under section 66F as that section continues to apply because of subclause 93(6A). 60. Subclause 93(7) would provide that sections 66M and 739, which set out dispute resolution processes, will continue to apply after commencement in relation to disputes relating to Division 4A of Part 2-2 that arose before commencement of Division 4A of Part 2-2 as amended by the Bill, and to disputes that arise after commencement relating to the operation of sections 66F to 66J as those sections continue to apply because of subclauses 93(6A) and 93(6B). 61. The effect of these amendments would be to preserve the right to request casual conversion for employees who are engaged as casual employees at commencement. The intention is to ensure that existing casual employees retain a mechanism in the FW Act to request conversion to full-time or part-time employment, until such time as they are able to access the new employee choice pathway. The employee choice pathway will become available 6 months after commencement of the Bill, or 12 months for casual employees employed by a small business. Closing the labour hire loophole Amendment 1: Schedule 1, item 72, page 39 (after line 4), at the end of section 201 62. New subsection 201(5) would address circumstances where the FWC approves a new enterprise agreement, where that enterprise agreement would become the host employment instrument named in an existing regulated labour hire arrangement order by operation of new section 306EB. This amendment would require that when approving a new enterprise agreement in these circumstances, the FWC must note in its decision to approve the enterprise agreement that it will be the host employment instrument, for that order. 63. This provision would be relevant where an enterprise agreement that applies to a regulated host is specified as the host employment instrument in a regulated labour hire arrangement order, and the new enterprise agreement being approved by the FWC would replace that enterprise agreement. 64. This amendment would operate in conjunction with new subsection 306EC(3), which would require the FWC to give written notice to employers covered by a regulated labour hire arrangement order of the approval of the host's new enterprise agreement, where the new enterprise agreement would become the host employment instrument for the purposes of that order. The FWC would also be required to notify relevant employers of the effect of the approval of the new enterprise agreement in relation to the regulated labour hire arrangement order. Amendment 2: Schedule 1, item 73, page 39 (lines 15 and 16) 65. This item would amend the Guide to Part 2-7A to provide that Division 2 deals with certain payments relating to termination of employment and the continued application of regulated 17

labour hire arrangement orders in particular circumstances, in addition to alternative protected rate of pay orders. Amendment 3: Schedule 1, item 73, page 40 (lines 30 to 32) 66. This amendment would add a new subsection to section 306D to provide that work would be considered to be done for a person where it is done for that person, for an enterprise they carry on, and for a joint venture or common enterprise that they carry on with one or more other persons. This would further clarify the intention of new section 306D that new Part 2-7A is intended to take into account the various circumstances in which labour hire arrangements may be used, including where employees are provided to work for the benefit of a joint venture or common enterprise between a number of parties. In those circumstances, the regulated host may be determined to be one of the parties to the joint venture or common enterprise. 67. For the purposes of this Part, the terms 'joint venture' and 'common enterprise' are intended to be read broadly and would include arrangements where there is a contractual agreement between parties to participate in a common project, and where the parties act together to incorporate a company for the purposes of a joint project. Amendment 4: Schedule 1, item 73, page 41 (lines 13 and 14) 68. This amendment would amend new section 306E(1)(a) to ensure that an application may be made where an employee is provided to perform work for the regulated host, irrespective of the contractual or other arrangements between the employer and the regulated host or other associated entities of the regulated host. 69. As an example, this amendment would clarify that the FWC may make an order where it is satisfied that the employer would supply labour to a regulated host who is party to a joint venture, whether or not the agreement for the supply of labour is made with the regulated host or another party to the joint venture. Amendment 5: Schedule 1, item 73, page 41 (after line 23), after subsection 306E 70. This amendment would insert new subsection 306E(1A), which would provide that despite subsection 306E(1), the FWC must not make a regulated labour hire arrangement order unless it is satisfied that the work performed by employees of an employer is not or will not be for the provision of a service, rather than the supply of labour. 71. In order to determine whether an arrangement is for the provision of services rather than the supply of labour, the FWC would be required to have regard to the factors listed in new subsection 306E(7A). 72. This new subsection would require the FWC to consider, as a jurisdictional matter, the reality of the arrangement between the host and the employer before determining whether an order can be made. Amendment 6: Schedule 1, item 73, page 42 (after line 29) 18

Amendment 8: Schedule 1, item 73, page 43 (lines 12-35) 73. New subsection 306E(1A) would provide that the FWC must not make a regulated labour hire arrangement order unless it is satisfied that the performance of the work is not or will not be for the provision of a service, rather than the supply of labour, to the regulated host. To determine whether the performance of the work is not or will not be for the provision of a service, the FWC must take into account the factors outlined in new subsection 306E(7A). These factors are whether and to what extent: • the employer is involved in matters relating to the performance of the work (paragraph 306E(7A)(a)); • the employer or a person acting on their behalf directs, supervises or controls the employees when they perform work for the host (paragraph 306E(7A)(b)); • the employees use or will use systems, plant or structures belonging to the employer to perform the work (paragraph 306E(7A)(c)); • the employer or another person is or will be subject to industry or professional standards or responsibilities in relation to the employees (paragraph 306E(7A)(d)); and • the work is of a specialist or expert nature (paragraph 306E(7A)(e)). 74. To the extent that each of the factors in paragraphs 307E(7A)(a) to (e) are demonstrated by submissions and evidence of the parties to the application for an order - for instance, that an employer directs, supervises or controls work being performed for the host - this would weigh in favour of the FWC finding that the arrangement is for the provision of a service rather than the supply of labour. 75. Not all the factors listed would need to be satisfied for the FWC to find that an arrangement is for the provision of a service, however the FWC must consider each of them. Where the parties do not put forward any evidence or submissions to the FWC about one or more of these factors, it would be sufficient for the FWC to note this as part of their consideration pursuant to subsection 307E(7A). 76. For the purposes of these new subsections, higher education qualifications would not be required for work to be considered specialist or expert. For example, employees of a catering service employer contracted to provide catering for a regulated host whose primary business is not the provision of catering services may be found to be undertaking work of a specialist or expert nature, even where the host's covered employment instrument provides for the performance of work of the type provided by the catering service provider. 77. These provisions allow the FWC to assess the reality of the arrangement to determine whether it is, or is not, for the provision of a service and then decide, as a jurisdictional question, whether it is prevented from making an order. Amendment 7: Schedule 1, item 73, page 42 (line 31) Amendment 9: Schedule 1, item 73, page 44 (after line 3), after paragraph 306E(8)(d) 19

78. New subsection 306E(8) in the Bill would set out matters that the FWC may consider when deciding whether it is not fair and reasonable in all the circumstances to make a regulated labour hire arrangement order for the purposes of new subsection 306E(2). The FWC is only required to consider matters listed in new subsection (8) where the parties have made submissions on these matters (new subsection 306E(2)). 79. This amendment would add a further consideration to the list of matters the FWC may consider under subsection 306E(8), where the regulated host named in an application is party to a joint venture or common enterprise and the work is being performed for that joint venture or common enterprise. 80. New paragraph 306E(8)(da) would provide that the FWC may consider the nature of the named host's interest in the joint venture or common enterprise. For example, where the host's interest in the joint venture or common enterprise is minor, or the host does not otherwise supply labour for the joint venture, these are intended to weigh against the FWC considering it would be fair and reasonable to make an order treating the named entity as the regulated host. However, where the named host is a meaningful participant in the joint venture,1 and/or supplies labour of the same kind as would be covered by the order to the joint venture, this would weigh in favour of the FWC finding that it is fair and reasonable to make an order that names the nominated party as the regulated host. 81. New subparagraph 306E(8)(da)(ii) would also require the FWC to consider the pay arrangements that apply to parties in the joint venture or common enterprise. The FWC may consider whether parties to the joint venture have employment instruments that apply to a particular class of employees, and whether there would be employees of that class performing work as part of the joint venture or common enterprise. Where labour provided as part of the labour hire arrangement is of a similar type to the work performed by those employees or where it would otherwise be covered by the employment instrument of a party to the joint venture, this may weigh in favour of that party being named the regulated host on the face of an order. 82. The effect of these provisions would be to permit the FWC to clarify which party should be named as the regulated host on the face of an order, where employees provide work to a joint venture or common enterprise and multiple parties to that joint venture or common enterprise benefit from the work. The FWC must consider fairness and reasonableness in coming to any decision. Where appropriate, this would permit employees providing work to a joint enterprise to be paid at the same rate as other employees working for that enterprise, where those employees are undertaking work that is similar or the same. 1 For example, has a significant share compared to other joint venturers, but not where a minority party is not simply providing a financial contribution in return for a share of the joint venture's output (for example, a share of the output in proportion to the share of the joint venture by way of an off-take arrangement). 20

Amendment 10: Schedule 1, item 73, page 44 (line 19) Amendment 11: Schedule 1, item 73, page 44 (line 20) 83. These amendments would make technical changes to the provisions to clarify that an order referenced in the section is an order made under the relevant section. Amendment 12: Schedule 1, item 73, page 44 (after line 25) 84. This amendment would add a note to subsection 306E(9) to clarify that for the purposes of paragraphs (b) and (c), an order may specify additional employers and regulated employees of those employers that may be covered by a determination made under new section 306EA. Amendment 13: Schedule 1, item 73, page 44 (after line 30), at the end of Subdivision A New section 306EA: Regulated labour hire arrangement order may cover additional arrangements 85. Subsection 306EA(1) would allow the FWC, of its own motion or upon a further application, to join another employer or employers (the additional employers) to an application for a regulated labour hire arrangement order. Before joining additional employers to an application, the FWC must be satisfied that the additional employers also, or will also, provide employees, and that the employees of the additional employers carry out, or will carry out, the same or similar work to the employees of the employer already named in the application for the regulated host. 86. New subsection 306EA(2) would provide that in addition to the FWC being able to make a determination under this section on its own motion, an application could be made by any of the following parties: • the original applicant for the regulated labour hire arrangement order; • any other party who could have made an application for the regulated labour hire arrangement order. For example, this would include the host, an employee of either the employer supplying labour or of the host receiving the labour, or an employee organisation entitled to represent such an employee; and • any potential additional employer that could be joined to the application, any employee of that employer, or an employee organisation entitled to represent any employees of that employer. 87. If the FWC exercises its power to join additional employers to the application, and before making a regulated labour hire arrangement order, new subsection 306EA(3) would require the FWC to seek the views of the additional employers, the employees of the additional employers, and any employee organisation entitled to represent the industrial interests of the additional employers' employees. 88. Subsection 306EA(4) would provide that, if the FWC decides to make an order under the original application, then, unless either of subsections 306EA(5) or (6) apply, the FWC 21

may also decide to include any or all of the additional employers, and any or all of their employees, as named parties within that order. 89. New subsection 306EA(5) would provide that the FWC must not include the additional employers or additional employees as parties named in the order, to whom the order applies, unless it is satisfied that: • the additional employers provide or will provide the additional employees to the regulated host, and the additional employees carry out or will carry out the same or similar kind of work as the employees already named in the application; • the host's employment instrument would be the covered employment instrument in respect of the additional employees; and • the work being carried out by the additional employees would not be for the provision of a service, but is rather for the provision of labour, having regard to subsection 306E(1A) and taking into account the factors in subsection 306E(7A). 90. The FWC must also only make the order in respect of the additional employers and additional employees if it is satisfied that it is fair and reasonable to do so, taking into account the submissions of the additional employers and additional employees, and the factors in subsection 306E(8). New section 306EB: Application of regulated labour hire arrangement order to new covered employment instrument 91. New section 306EB would cover circumstances where an employment instrument (including an enterprise agreement) of a regulated host is referred to as the covered employment instrument for the purposes of a regulated labour hire arrangement order, and a new covered employment instrument is made that applies to the host and its employees. In such a circumstance, the amendments would provide that the order will be taken to refer to the new covered employment instrument from the time the new instrument starts to apply to the host's employees. New section 306EC: Notification requirements in relation to new covered employment instrument 92. New subsections 306EC(1) and 306EC(2) would require the regulated host to provide written notice to the employer or employers covered by the order that the new employment instrument has been approved (whether by its employees or otherwise) and inform the employer or employers of the effect of the new instrument. This provision is a civil remedy provision. 93. New subsection 306EC(3) would further provide that, where the FWC approves an enterprise agreement that will replace a covered employment instrument listed in a regulated labour hire arrangement order, the FWC must inform the employers covered by the order that the enterprise agreement has been approved, and the effect of approval of the enterprise agreement in relation to the order. Subsection 306EC(3) would operate in 22

conjunction with the proposed amendment to insert a new subsection 201(5) of the FW Act, which would require the FWC to specify in its approval decision that the regulated labour hire arrangement order would apply in relation to the newly approved enterprise agreement. New section 306ED: Varying regulated labour hire arrangement order to cover new employers 94. New subsection 306ED(1) would apply where there is a regulated labour hire arrangement order either in force or made but not yet in force between a host and one or more employers, and the host enters into an arrangement with one or more other employers not already covered by the order to supply employees to perform work of the kind being provided by the employer already covered by the order. This may occur in the ordinary course of business, for example, where the regulated host puts the supply of labour services out to tender. 95. In these circumstances, new subsection 306ED(2) would require the host to apply to the FWC for an order to vary the regulated labour hire arrangement order to cover the new employers, as soon as practicable after they become aware that a new employer is to supply regulated employees in the manner described in subsection 306ED(1). This provision would be a civil remedy provision. 96. New subsection 306ED(3) would provide that a host is not permitted to discontinue an application brought under subsection 306ED(2) under section 588 (which relates to discontinuing applications) unless the regulated host will no longer be engaging a new employer to provide employees to perform work of the kind covered by the regulated labour hire arrangement order. 97. New subsection 306ED(4) would require the host to notify the new employer engaged to provide labour to the regulated host in writing that the host has made the variation application, and that the regulated labour hire arrangement order would apply to the new employer and their employees on an interim basis until the FWC makes a decision on the variation application. The host would be required to so notify the new employer as soon as possible after the variation application is made. This provision would be a civil remedy provision. 98. New subsection 306ED(5) would provide that the FWC must take all reasonable steps to make a decision on the variation application before the new employer supplies any employees to the regulated host to commence work. 99. New subsection 306ED(6) would provide that the FWC must make the variation order if the host and the new employer inform the FWC that they agree to the order being made. 100. New subsection 306ED(7) would provide that, subject to requirements in subsections 306ED(8) and (9), the FWC must also make the variation order if it is satisfied of the matters referred to in subsection 306E(1) in relation to the regulated host, the new 23

employer, and employees of the new employer engaged to supply labour for the purposes of the order. 101. New subsection 306ED(8) would provide that the FWC must not make a variation order under subsection (7) unless it is satisfied that the performance of work is not or will not be for the provision of a service, rather than the supply of labour. 102. New subsection 306ED(9) would provide that the FWC must not make the variation order if it is satisfied that it is not fair and reasonable in the circumstances to make the order. In deciding this, the FWC must have regard to any matters referred to in subsection 306E(8) in relation to which parties have made submissions. 103. New subsection 306ED(10) would provide that the variation order would come into effect on a day specified in the order. 104. New subsection 306ED(11) would provide that, if the FWC does not decide whether to make the variation order before the new employer supplies employees to the regulated host, the regulated labour hire arrangement order is taken to apply to the new employer and employees it supplies to the host on an interim basis from the time the application is made, until it is determined. During this time, the new employer will be subject to the requirements of the existing order in relation to employees supplied to work for the host in respect of work of a type covered by the order, including the requirement to pay those employees the protected rate of pay in respect of that work. New section 306EE: Notifying tenderers etc. of regulated labour hire arrangement order 105. New subsection 306EE(1) would provide that the provision applies where a host is covered by a regulated labour hire arrangement order, and a tender process is conducted by or on behalf of a host, or in respect of a joint venture or common enterprise to which the host is a party. The tender process must be in respect of work that is the subject of an order, where successful tenderers to that process would become covered by that order by operation of new section 306ED. 106. New subsection 306EE(2) would provide that the host conducting the tender process must advise all of the tenderers for the supply of labour, from the start of the tender process, that the regulated labour hire arrangement order may apply to the successful tenderer, and that they could be required to pay the protected rate of pay to their employees. This provision would be a civil remedy provision. In relation to this requirement, new subsection 306F(3A) described below would provide that an employer would not be subject to a civil penalty if they pay regulated employees less than the protected rate of pay, where the host was required to notify them as a tenderer under subsections 306EE(2) or (3), but failed to do so. 107. New subsection 306EE(3) would provide that the host must, as soon as practicable after the end of the tender process, advise the successful tenderer or tenderers in writing that: • the host is required to make an application pursuant to subsection 306ED(2); 24

• the effect of subsection 306ED(11) in relation to the application; and • that if the FWC decides to vary the regulated labour hire arrangement order under section 306ED to cover those employers, and the order is in force or would come into force, the employers would be required to pay their employees who perform work for the regulated host in accordance with Part 2-7A at the protected rate of pay. Amendment 14: Schedule 1, item 73, page 45 (line 9) Amendment 17: Schedule 1, item 73, page 48 (line 19) Amendment 18: Schedule 1, item 73, page 49 (line 10) Amendment 19: Schedule 1, item 73, page 49 (line 14) Amendment 20: Schedule 1, item 73, page 49 (line 18) Amendment 21: Schedule 1, item 73, page 49 (line 23) Amendment 27: Schedule 1, item 73, page 52 (line 10) Amendment 28: Schedule 1, item 73, page 52 (line 13) Amendment 29: Schedule 1, item 73, page 52 (line 17) Amendment 30: Schedule 1, item 73, page 55 (line 11) Amendment 32: Schedule 1, item 73, page 56 (line 8) Amendment 33: Schedule 1, item 73, page 56 (line 11) 108. These amendments would make technical changes to the provisions to clarify their application to employees of the relevant employer. Amendment 15: Schedule 1, item 73, page 45 (line 15) Amendment 16: Schedule 1, item 73, page 45 (after line 25), after subsection 306F(3) 109. New subsection 306F(3A) would provide that an employer would not contravene the requirement to pay the protected rate of pay in subsection 306F(2) if they are required to pay the protected rate of pay on an interim basis because a variation application has been made but they have not been notified by the regulated host of the variation application or because the host did not comply with their obligations under new subsections 306EE(2) and (3). The intention of this provision is to prevent employers being exposed to a civil penalty where they were not notified of their obligations to pay the protected rate of pay to employees. Amendment 22: Schedule 1, item 73, page 50 (line 2) Amendment 23: Schedule 1, item 73, page 50 (line 6) Amendment 24: Schedule 1, item 73, page 50 (line 10) 25

110. These amendments would make technical changes to clarify that a reference in the relevant provisions may be made to one or more employers. Amendment 25: Schedule 1, item 73, page 50 (lines 23-25) 111. This amendment would omit paragraph 306L(1)(a) and substitute new paragraph 306L(1)(a) to make clear that an employer or employee covered by the regulated labour hire arrangement order may make an application to the FWC for a determination to vary the exemption period for a short term arrangement. Amendment 26: Schedule 1, item 73, page 51 (line 13) 112. This amendment would alter the list of factors the FWC must have regard to in determining whether exceptional circumstances exist to justify the making of a determination varying the exemption period. The effect of this amendment would be that the FWC must take into account the circumstances of any relevant employers covered by the regulated labour hire arrangement order, as well as the circumstances of the regulated host. Amendment 31: Schedule 1, item 73, page 55 (after line 33), at the end of Division 2 113. New subsection 306NA(1) would provide that the section applies if an employee's employment is or is to be terminated, and the employee is or has been covered by a regulated labour hire arrangement order. This amendment would specify appropriate rates of pay for termination entitlements for employees who are or have been covered by such an order. 114. New subsection 306NA(2) would specify how amounts of payments relating to the termination of an employee's employment are to be determined. The new provision would provide that where an employer is required to make payments in relation to the termination of an employee's employment, the rate of that payment will be the rate of pay the employee is ordinarily entitled to, unless the employee is covered by new subsection 306NA(3). In that case, the applicable rate of pay will be the rate of pay under the operation of the new Part. This is intended to include any amounts payable in respect of the protected rate of pay. 115. New subsection 306NA(3) would set out circumstances in which an employee's termination of employment payments must be calculated in accordance with the operation of the new Part. These circumstances include where: • immediately before the termination of the employee's employment occurs or is to occur, the employee's work is or will be covered by a regulated labour hire arrangement order; • the employee would be performing work in respect of that order for a host at the time of the termination of their employment, (including during a period of authorised leave or absence); and 26

• unless the amount is a payment in lieu of notice of termination, the employee has not performed work for any other regulated host in relation to the employee's employment with the employer. 116. New subsection 306NA(3A) would ensure that, where an employee has worked for a joint venture or common enterprise, each of the other parties to the joint venture or common enterprise are disregarded when considering whether an employee has worked for one or more parties. This would mean that, if an employee has only worked for the joint venture under their agreement with their employer, the employee is taken to have only worked for one regulated host under that joint venture. The employee will not be taken to have worked for more than one regulated host, irrespective of whether their work has also been for the benefit of the other joint venturers. 117. The intention of this provision is to simplify the calculation of amounts payable on termination of employment for employers. Where an employee has only performed work for one regulated host during their employment, termination payments will be calculated with reference to the protected rate of pay if that rate is higher than what they would otherwise be paid. Where an employee has performed work for more than one regulated host, termination payments will be calculated with reference to the terms of the employer's enterprise agreement or other applicable employment instrument. The exception to this is payment in lieu of notice of termination of employment. Such payments in lieu of notice will be payable at the protected rate of pay, where that rate is higher than what the employee would otherwise be paid in lieu of notice, and where immediately before the termination of the employment occurs or is to occur, the employee is or will be covered by a regulated labour hire arrangement order in force in relation to work performed by the employee for a regulated host. In practice, this means payment in lieu of notice will be payable at no less than the protected rate of pay where termination occurs during an employee's placement with a host covered by a regulated labour hire arrangement order, even if they have worked for other regulated hosts previously. 118. New subsection 306NA(4) would provide that if the performance of the work for the host relates to a joint venture or common enterprise engaged in by the host and one or more other persons, for the purposes of paragraph 306NA(3)(d), parties are to disregard any work that is taken to be performed for those other persons because of the operation of paragraph 306D(2)(c). Paragraph 306D(2)(c) provides that a reference in this Part to work performed for a person includes a reference to work performed wholly or principally for the benefit of a joint venture or common enterprise engaged in by the person and one or more other persons. 119. New subsection 306NA(5) would provide for excluded subject matters in respect of this provision. It would provide that where the employer is a referring state, and therefore is only a national system employer by operation of section 30D or 30N of the FW Act, section 306NA would not apply. Any termination payments would be paid in accordance with the relevant arrangements of the employer. 27

120. New subsection 306NA(6) would provide that the section would apply despite the terms of any fair work instrument, covered employment instrument, or employment contract that applies to the employee. Amendment 34: Schedule 1, item 73, page 60 (after line 9), after section 306S 121. New section 306SA is a broad anti-avoidance provision aimed at preventing behaviours intended to avoid the operation of Part 2-7A. It would supplement the effect of new section 306S. 122. New subsection 306SA(1) would provide that an employer or a regulated host contravenes the section if they enter into a scheme, or carry out or begin to carry out a scheme, either alone or with another person or persons, where the sole or dominant purpose is to avoid the application of a regulated labour hire arrangement order that has been made, whether or not the order is yet in force. The provision would apply where as a result of the scheme a person avoids the application of such an order. A contravention of this provision would attract a civil penalty. 123. 'Scheme' would be defined broadly in new subsection 306SA(2). 124. Adopting certain corporate structures with the sole or dominant purpose of avoiding the application of an existing regulated labour hire arrangement order (for instance, a structure that would limit the number of employees to whom the order would apply) is an example of a scheme that may contravene this provision. Amendment 35: Schedule 1, item 74, page 62 (table item 9A), omit the table item, substitute 125. This amendment would replace the table item at 9A in Schedule 1, item 74, page 62 of the Bill to ensure that the table accurately makes reference to all penalty provisions set out in the amendments to the legislation. 126. This item would add a new table item at 9A regarding contraventions of new subsection 306SA(1) to the table of civil remedy provisions set out at subsection 539(2) of the FW Act. Contraventions of new subsection 306SA(1) would be included in the new table item as a civil remedy provision. 127. The new table item would provide that an employee, an employee organisation or an inspector could bring an action for an alleged contravention of the provisions in a federal court or eligible State or Territory Court. The maximum civil penalty for a contravention would be 60 penalty units, or 600 penalty units for serious contraventions. 28

Workplace delegates' rights Amendment 1: Schedule 1, item 84, page 66 (line 21) Amendment 2: Schedule 1, item 90, page 68 (line 30) 128. These amendments would replace the reference to 'small business' in subparagraph 350C(3)(b)(ii), and from 1 July 2024 the reference to 'small business' in subparagraph 350C(3)(b)(iii), to refer instead to 'small business employer'. 129. These provisions provide an exception to small business employers from the obligation to provide workplace delegates access to paid time, during normal working hours, for the purposes of related training. 130. These technical amendments would ensure the provisions operate as intended and are consistent with the use of 'small business employer' in the FW Act, which is the defined term in section 23. Definition of employment Amendment 1: Clause 2, page 4 (table item 21) 131. This amendment would change the commencement of Part 15 of Schedule 1 from the day after Royal Assent to 1 July 2024. This will ensure that the new definition of employment commences at the same time as the amendments related to 'employee-like' workers. Provisions relating to regulated workers Amendment 1: Schedule 1, item 248, page 125 (after line 31) 132. This amendment would insert new section 15KA at the end of new Subdivision A of new Division 3A. Subsection (1) would provide that, for the purposes of ascertaining the real substance, practical reality and true nature of the relationship between an individual and a person, any steps taken by a digital labour platform operator to comply with its obligations under any of the following in relation to the individual are to be disregarded: • Part 3A-3 (Unfair deactivation or unfair termination); • the Digital Labour Platform Deactivation Code (being the code made by the Minister under section 536LJ); or • an order made under, or for the purposes of, Chapter 3A. 133. Subsection (2) would provide that an employee-like worker to whom an ELMSO applies in relation to particular digital platform work is not an employee in relation to that work. 134. These amendments would provide certainty to digital labour platform operators about the status of their workers for the purpose of determining the workers' rights and entitlements. The amendments would ensure that steps taken by a digital labour platform 29

operator to comply with its obligations cannot be considered when determining whether the true nature and practical reality of the employment relationship is one of employment. This avoids a perverse outcome whereby acts of a digital labour platform operator to comply with the new employee-like provisions or orders made under them may otherwise have the effect of inadvertently creating an employment relationship. 135. The amendment would also provide certainty to digital labour platform operators that workers covered by minimum standard orders cannot later bring proceedings to recover unpaid employment entitlements. Amendment 2: Schedule 1, item 249, page 135 (after line 6) 136. This amendment would insert new subsection 536JF(2A), which would provide that the FWC must be satisfied that the specified day on which an ELMSO would come into operation would enable the FWC to undertake a reasonable period of consultation after the relevant notice of intent for the order was published, having regard to the unique nature of digital platform work. Amendment 3: Schedule 1, item 249, page 135 (after line 21) 137. This amendment would insert new subsection 536JF(6A), which would provide that the 'the relevant notice of intent' for an ELMSO (referred to in new subsection 536JF(2A)) is the notice of intent published under new subsection 536KAA(1) (see amendment 11) at the same time as the draft of the ELMSO is published. Amendment 4: Schedule 1, item 249, page 147 (line 21) 138. This amendment would add 2 new subparagraphs to paragraph 536JX(a). The new subparagraphs would have the effect that in performing a function or performing a power under Part 3A-2, the FWC must take into account the need for an appropriate safety net of minimum standards for regulated workers, having regard to the need for standards that: • reflect the differences in the form of engagement of regulated workers as independent contractors to the form of engagement of employees; and • have regard to the ability of regulated workers to perform work under a services contract for multiple businesses, and the fact that the work may be performed simultaneously. 139. These factors are in addition to the other factors that must be taken into account in section 536JX (the minimum standards objective). Amendment 5: Schedule 1, item 249, page 147 (lines 25 to 31) 140. This amendment would omit and replace subparagraphs 536JX(b)(i) and (ii), with the effect that in performing a function or performing a power under Part 3A-2, the FWC must take into account the need for an appropriate safety net of minimum standards for regulated workers, having regard to the need for standards that deal with minimum rates of pay that: 30

• take into account costs necessarily incurred by regulated workers directly arising from the performance of a services contract; and • take into account safety net minimum standards that apply to employees performing comparable work. 141. It is intended this would require the FWC to consider the type of costs that would be incurred by a regulated worker in the course of performing work under a services contract and not costs that regulated workers would ordinarily incur regardless of the work performed under a services contract, such as fixed costs for vehicles that also are for personal use. The FWC would also be required to take into account comparable safety net minimum standards that apply to employees performing similar work, rather than terms and conditions above these that reflect 'industry rates'. 142. These factors are in addition to the other factors that must be taken into account in section 536JX (the minimum standards objective). Amendment 6: Schedule 1, item 249, page 148 (line 1) 143. This amendment would replace subparagraph 536JX(c)(ii), with the effect that in performing a function or performing a power under Part 3A-2, the FWC must take into account the need for an appropriate safety net of minimum standards for regulated workers, having regard to the need to avoid unreasonable adverse impacts upon business costs, regulatory burden, sustainability, innovation, productivity or viability. 144. This factor is in addition to the other factors that must be taken into account in section 536JX (the minimum standards objective). Amendment 7: Schedule 1, item 249, page 148 (after line 4) 145. This amendment would add a new subparagraph to paragraph 536JX(c), with the effect that in performing a function or performing a power under Part 3A-2, the FWC must take into account the need for an appropriate safety net of minimum standards for regulated workers, having regard to the need to avoid unreasonable adverse impacts upon persons or bodies that use or rely on the work performed by regulated workers, or the services received under services contracts for the performance of that work. 146. This factor is in addition to the other factors that must be taken into account in section 536JX (the minimum standards objective). Amendment 8: Schedule 1, item 249, page 148 (line 6) 147. This amendment would amend paragraph 536JX(d), to the effect that in performing a function or performing a power under Part 3A-2, the FWC must take into account the need for an appropriate safety net of minimum standards for regulated workers, having regard to the need to consider other orders or instruments (however described) made under Chapter 3A and to avoid unnecessary overlap of such orders or instruments. 31

148. This factor is in addition to the other factors that must be taken into account in section 536JX (the minimum standards objective). Amendment 9: Schedule 1, item 249, page 149 (lines 19 and 20) 149. This amendment would change the heading of Subdivision B of Division 3 of new Part 3A-2 from 'Initial matter to be considered for employee-like worker minimum standards orders' to 'Matters relating to employee-like worker minimum standards orders' to reflect that the scope of Subdivision B would be broadened by the amendments. Amendment 10: Schedule 1, item 249, page 149 (lines 21 and 22) 150. This amendment would amend the heading of section 536K from 'Initial matter to be considered for employee-like worker minimum standards orders' to 'Particular matters FWC must take into account in making a decision on an employee-like worker minimum standards order' to reflect that the scope of the section would be broadened by the amendments. Amendment 11: Schedule 1, item 249, page 150 (after line 6) 151. This amendment would insert new subsection 536K(4), which would provide additional matters the FWC must take into account before making or varying an ELMSO. 152. Under the new subsection, the FWC could not make or vary an ELMSO unless there has been genuine engagement with the parties that the ELMSO covers or would cover, and the consultation process set out in new Subdivision BA has been followed. 153. When making or varying ELMSOs the FWC would also be required to have regard to choice and flexibility in working arrangements. The requirement to have regard to choice and flexibility in working arrangements would further ensure that the FWC has regard to the unique nature of digital platform work, without compromising on minimum safeguards to be afforded to employee-like workers to whom an ELMSO would apply. That is, the ability of an employee-like worker, as a type of independent contractor, to have choice and flexibility regarding matters such as when and how they perform digital platform work, the time of day they choose to work, the duration of such work, and how many times a day they choose to work. This would complement the requirements that the FWC not include any term in an MSO that changes the form of the engagement (paragraph 536KM(1)(d)) and that it sets standards having regard to the need for standards to reflect the differences in the form of engagement of regulated workers as independent contractors (see amendment 4). Amendment 12: Schedule 1, item 249, page 150 (before line 7) 154. This amendment would insert new Subdivision BA into Division 3 of Part 3A-2, which would set out a consultation process for ELMSOs. 32

Subdivision BA--Consultation process for employee-like worker minimum standards orders 536KAA FWC to prepare and publish a draft of an employee-like worker minimum standards order 155. Subsection (1) would provide that before the FWC makes an ELMSO, it must publish a notice stating that it proposes to make an ELMSO, and must publish a draft of the proposed ELMSO. Subsection (2) would require the FWC to publish the notice of intent and the draft ELMSO on the FWC website and by any other means the FWC considers appropriate. 156. This requirement is limited to the making of ELMSOs and would ensure that before a ELMSO is made, the FWC has adequately consulted affected parties on the implications of the rights and obligations put forward in a draft ELMSO. 157. This would also assist the FWC in its decision-making in accordance with the minimum standards objective (section 536JX) and the additional matters listed in amended section 536K. 536KAB Affected entities to have a reasonable opportunity to make submissions on a draft employee-like worker minimum standards order 158. Subsection (1) would require the FWC to ensure affected entities have a reasonable opportunity to make written submissions to it in relation to a draft ELMSO published under new paragraph 536KAA(1)(b), having regard to the unique nature of digital platform work. 159. Subsections (2) and (4) would require the FWC to publish submissions received on its website and by any other means it considers appropriate. 160. Subsection (3) would provide the FWC does not have to publish information in submissions that is confidential or commercially sensitive. Instead, the FWC may publish 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). If the FWC considers it not practicable to prepare such a summary, the FWC may publish a statement that confidential or commercially sensitive information in the submission has not been published. 161. Subsection (5) would provide that a reference in the FW Act to a submission under this section includes a reference to a summary or statement referred to in paragraph (3)(b). 162. Subsection (6) would provide that an affected entity for the purposes of subsection (1) is a person or body likely to be affected by the making of an ELMSO based on the draft. An affected person or body would include an employee-like worker who would be covered by the ELMSO, a digital labour platform operator that would be covered by the ELMSO, and registered organisations entitled to represent them. 163. Subsection (6) would also provide an affected entity for the purposes of subsection (1) is a person or body prescribed by the regulations, or a person or body belonging to a class prescribed by the regulations. 33

164. It is intended this section would require the FWC to give people an opportunity to be involved in the process, noting it is required under existing section 577 to perform its functions in a manner that is open and transparent. This would ensure that there is meaningful public consultation prior to the making of ELMSOs. 536KAC Hearings in relation to draft order 165. This provision would provide that the FWC may hold a hearing in relation to a draft ELMSO if it chooses. 536KAD Finalising draft order 166. This section would provide that the FWC may make any changes it thinks appropriate to a draft ELMSO. If the changes are significant, the FWC must do the following: • decide not to make the ELMSO based on the draft; • publish a subsequent notice of intent (as per new subsection 536KAA(1)) in relation to the revised ELMSO and publish the revised draft; and • follow the same process set out in section 536KAB - with the FWC to ensure a further reasonable period of consultation having regard to the unique nature of digital platform work. 167. This provision would require the FWC to afford affected persons another meaningful opportunity (in addition to the initial consultation that would be required under new section 536KAB) to consider the revised draft order and how it may affect them, and ensure the FWC takes these contemporary views on a draft ELMSO as it is meant to be taken into account in the making of a final order, if any. 536KAE Decision not to make order based on the draft 168. This provision would provide that the FWC can decide that no ELMSO is to be made based on the draft. If it does, it must publish a notice of this decision on its website and any other means it considers appropriate. In this way, there is no compulsion or requirement for the FWC to make an ELMSO at the completion of the mandatory consultation process. Amendment 13: Schedule 1, item 249, page 156 (line 3) 169. This amendment would remove 'working time' from subsection 536KL(1), which provides a non-exhaustive list of terms that may be included in a minimum standards order. Amendment 14: Schedule 1, item 249, page 156 (line 4) 170. This amendment would amend paragraph 536KL(1)(d) to provide that a minimum standards order may include terms about record keeping in relation to matters covered by or required by the FW Act (or an order or instrument made under that Act) that concern regulated workers or regulated businesses. This would mean the FWC would be able to make terms about record-keeping in relation to obligations a regulated business may have under new Chapter 3A and other application parts of the FW Act. 34

Amendment 15: Schedule 1, item 249, page 157 (after line 3) 171. This amendment would insert new section 536KMA, which, in addition to the matters set out in section 536KM, would provide further terms that must not be included in an ELMSO. 172. Subsection (1) would provide that an ELMSO must not include terms about the following matters: • penalty rates for work performed at particular times or on particular days (including but not limited to loadings and shift allowances); • payment for time prior to the acceptance of an engagement on a digital labour platform or time in between the completion of an engagement and the commencement of the next engagement on a digital labour platform; and • minimum periods of engagement or a minimum payment referrable to a period of minimum engagement. 173. Subsection (2) would allow the FWC to include a term about a matter mentioned in subsection (1) only if it is satisfied that the inclusion of the term is appropriate for the type of work performed by the employee-like workers and the digital labour platform operators covered by the ELMSO. Amendment 16: Schedule 1, item 249, page 161 (after line 27) 174. This amendment would insert new paragraph 536KY(aa), which would have the effect that ELGs could not include terms about any matters not permitted to be included in ELMSOs under new section 536KMA. Amendment 17: Schedule 1, item 249, page 168 (after line 3) 175. This amendment would insert new subsections 536LH(3) and (4). 176. Subsection 536LH(1) sets out criteria that the FWC must take into account in considering whether a deactivation was unfair. New subsection (3) would provide that, despite subsection 536LH(1) and any other provision of Part 3A-3, a deactivation is not unfair if: • the deactivation is constituted by the modification or suspension of the person's access to the digital labour platform for a period of not more than 7 business days; and • the FWC is satisfied that the digital labour platform operator concerned believes on reasonable grounds that one or more of the matters in subsection (4) is applicable. 177. New subsection (4) would provide that those matters include that: • the deactivation of the person is necessary to protect the health and safety of a user of the digital labour platform or member of the community; • the person has engaged in fraudulent or dishonest conduct; 35

• the person has not complied with applicable licencing and accreditation requirements imposed by or under law of the Commonwealth, a State or a Territory, whether the requirements relate to the licensing or accreditation of: o the person; or o the digital labour platform operator, and the person's conduct causes, or may cause, the digital labour platform operator to breach the requirements; • the deactivation is necessary to enable the digital labour platform operator to conduct an investigation into a matter referred to in paragraphs (a), (b) or (c) or refer the matter to a law enforcement agency. Mediation and conciliation conference orders Amendment 1: Clause 2, page 3 (after table item 20) 178. This amendment would provide that new Part 14A of Schedule 1 to the Bill would commence the day after the Act receives the Royal Assent. Amendment 2: Schedule 1, page 112 (after line 10), after Part 14 179. This amendment would insert new 'Part 14A - Amendments relating to mediation and conciliation conference orders made under section 448A of the Fair Work Act 2009' into the Bill. New Part 14A addresses the circumstances in which protected employee claim action and employer response action is available following a conference ordered by the FWC under section 448A of the FW Act. 180. Amendments made by the SJBP Act provided that where the FWC has made a PAB order in relation to a proposed enterprise agreement, the FWC is required under section 448A to make an order directing all bargaining representatives for the proposed agreement to attend a conference for the purposes of mediation or conciliation. The conference must occur on or before the day on which voting in the PAB closes. The amendments were intended to provide an opportunity for bargaining parties to further negotiate and potentially reach agreement, or at least confine disputed issues, before industrial action is taken. 181. A Full Bench of the FWC considered the new provisions in CEPU v Nilsen (NSW) Pty Ltd [2023] FWCFB 134 (Nilsen). It noted (at [68]-[69]) that employee claim action will only be protected under the amendments if each bargaining representative of an employee who will be covered by the agreement has attended the conciliation conference. This means that non-compliance with an order to attend a section 448A conference by one or more employee bargaining representatives, for example, one who may not have been the applicant for the PAB order, could render subsequent employee claim action unprotected - for both those represented by the non-complying bargaining representative and for others participating in the action. 182. New Part 14A would address the issue identified in Nilsen by clarifying the class of employee bargaining representatives captured by the requirement to attend a conciliation conference in order for subsequent industrial action engaged in by employees to be 36

protected. It would also clarify the circumstances in which an employer bargaining representative can engage in employer response action. 183. New item 236A would repeal and substitute subsection 409(6A), which sets out one of the requirements that must be satisfied for employee claim action to be protected. The effect of amended subsection 409(6A) is that the bargaining representative who applied for a PAB order must have attended the conciliation conference under section 448A that related to the PAB order for the subsequent industrial action to be protected. Where 2 or more bargaining representatives jointly apply for the PAB order, each of those bargaining representatives must have attended the conciliation conference. 184. New item 236B would amend subsection 411(3) to clarify that the employer organising or engaging in industrial action in response to action that is authorised by a PAB, and any bargaining representative of the employer, must have attended a conciliation conference under section 448A that related to the PAB order for the subsequent employer response action to be protected. Amendment 3: Schedule 1, item 308, page 223 (after line 28), at the end of Part 15 185. This amendment would insert new 'Division 12 - Amendments made by Part 14A of Schedule 1 to the amending Act' into Part 18 of Schedule 1 to the Bill. New Division 12 would contain application provisions for new Part 14A. 186. New subclause 111(1) would apply the amendment of subsection 409(6A) to industrial action to the extent that the action occurs, or is to occur, on or after the commencement of Part 14A. 187. New subclause 111(2) would provide that the amendment does not apply in relation to certain conduct undertaken before commencement in relation to industrial action, even if the action occurs, or was to occur, on or after that commencement. 188. New subclause 111(3) would provide that for the purposes of subsection 409(6A), as amended, it does not matter whether a contravention of an order made under section 448A of the FW Act occurred before, on or after the commencement of that Part. 189. The intention is to ensure the amendment of subsection 409(6A) applies prospectively in relation to conduct engaged in on or after commencement and does not affect the legal status of past conduct. Asbestos and Silica Safety and Eradication Agency Amendment 1: Schedule 2, page 236 (after line 21), after item 17 190. This amendment would clarify the relationship between the new functions which will be conferred on ASEA and the Commonwealth's powers under the Financial Framework (Supplementary Powers) Act 1997. It is a technical amendment. 37

Mining and Energy Union Amendment 1: Clause 2, page 4 (in the appropriate position in the table) 191. This amendment would provide that the amendments to the Coal LSL Administration Act regarding the Coal LSL Corporation's Board of Directors commence on the later of: • the day after Royal Assent; and • the day the M&E Division withdraws from the CFMMEU as determined by the Federal Court under paragraph 109(1)(a) of the RO Act, which will be 1 December 2023. 192. However, the amendments will not commence at all if the withdrawal does not occur. 193. If the Bill does not receive the Royal Assent before the withdrawal day, relevant provisions of the AI Act would apply, ensuring decisions and actions of existing Directors representing the M&E Division are valid. Amendment 2: Page 278 (after Schedule 4), in the appropriate position 194. This amendment would insert new 'Schedule 5-Amendment of the Coal Mining Industry (Long Service Leave) Administration Act 1992'. New Schedule 5 would amend the legislation establishing the Coal LSL Corporation, which administers the portable long service leave scheme for the black coal mining industry. 195. As a result of the Federal Court's decision on 20 November 2023, the M&E Division will withdraw from the CFMMEU and become a new registered organisation registered under the RO Act from 1 December 2023 called the MEU. 196. New item 1 would amend subsection 13(4) to allow the Minister to appoint 2 Directors to represent the new MEU. 197. New item 2 would repeal subsection 13(7), which currently preserves the operation of the provisions establishing the Board of Directors if the M&E Division changes its name or merges with another Division of the CFMMEU. Subsection 13(7) is no longer necessary given existing subsection 13(8) preserves the operation of the provisions dealing with the Board of Directors if a registered organisation represented on the Board changes its name, mergers with another organisation or is succeeded by another organisation. As the MEU will be a registered organisation following the demerger, existing subsection 13(8) will apply to it in relation to any future changes. 198. New item 3 is a savings provision. It would preserve the appointments of existing Directors representing the M&E Division until the expiry of their term. Family and Injured Workers Advisory Committee 199. This amendment would add a new Part 8 to Schedule 4 to the Bill to amend the WHS Act to provide for a Family and Injured Workers Advisory Committee (Advisory 38

Committee). The Advisory Committee would provide a representative forum for people with lived experience of serious workplace incidents to share their perspectives, give advice and make recommendations to the Minister about the needs of persons affected by serious work-related incidents. The Advisory Committee would also give advice to Commonwealth WHS regulators (Comcare, AMSA and NOPSEMA). Advice to regulators would be about their engagement with persons affected by serious work-related incidents, and the development of relevant policies and strategi es. 200. The existing amendments in Schedule 4 strengthen the penalties and offences framework, providing deterrence from, and ensuring significant penalties apply to, the worst breaches of work health and safety duties. This amendment would complement these measures by ensuring the voices of those with relevant lived experience inform the policies and supports for those who are affected by serious work-related incidents. 201. The establishment of the Committee aligns with the National Principles to support families following an industrial death developed by SWA, which include the principle that 'bereaved families and seriously injured workers and their families should have the opportunity to give feedback to government, and advocate for change or reform to meet the needs of those significantly impacted by industrial death or serious injury'. 202. The amendment also responds to the 2018 Senate Education and Employment References Committee Report Senate Inquiry which identified critical issues in the prevention, investigation and prosecution of workplace deaths, and made recommendations, including improving support for families affected by a workplace fatality. In particular, recommendation 27 of the Senate Inquiry that each jurisdiction 'establish advisory committees designed to give advice and make recommendations to the relevant minister about the information and support needs of persons who have been affected directly or indirectly by a workplace incident that involves a death, serious injury or serious illness'. Amendment 1: Clause 2, page 4 (at the end of the table) 203. This amendment to the commencement information table in clause 2 of the Bill would add new Part 8 to Schedule 4 to the Bill and specify that it would commence the day after Royal Assent. Amendment 2: Schedule 4, page 278 (after line 5), at the end of the Schedule 204. This amendment would add a new Part 8 to Schedule 4 to the Bill setting out amendments to Schedule 2 to the WHS Act. Item 74: After Part 3 of Schedule 2 205. This item would insert a new Part 3A to Schedule 2 to the WHS Act providing the legislative framework to establish a Family and Injured Workers Advisory Committee (Advisory Committee). The Advisory Committee would be primarily comprised of members with lived experiences of serious work-related incidents. The unique perspectives 39

of lived experience members would inform the advice and recommendations the Advisory Committee gives to the Minister and Commonwealth WHS regulators (Comcare, NOPSEMA, AMSA) on policies, procedures and strategies concerning serious work- related incidents. Clause 3A: Definitions for this part 206. This clause would insert 6 new definitions for the purposes of new Part 3A. 207. The definition of 'serious work-related incident' would mean the death of a person, or a serious injury or illness of a person, arising out of the conduct of a business or undertaking. Whether the death, illness or injury meets this definition would be a question of fact and in this context 'serious injury or illness' has its ordinary meaning. This is unlike Part 3 of the WHS Act which defines 'serious injury or illness' in section 36 for the purposes of incident notification. 208. A death, serious injury or illness would need to have a sufficient connection to the conduct of an undertaking (or multiple undertakings) but would not need to be a specific 'incident' such as an accident. This would ensure that having a long latency disease such as silicosis or mental illness, which can develop over time, would make a person eligible to be a member of the Advisory Committee. Clause 3B: Establishment of the Family and Injured Workers Advisory Committee 209. This clause would establish an advisory committee titled the Family and Injured Workers Advisory Committee, which would need to be established within 12 months of Part 3A commencing. 210. Deferring establishment of the Advisory Committee would provide the opportunity for appointments to be made, stakeholder consultation and drafting necessary legislative instruments to support the Advisory Committee's functions. Clause 3C: Functions of the Advisory Committee 211. This clause would set out the functions of the Advisory Committee, which would be to give advice to government and relevant regulators. The Advisory Committee would: • give advice and make recommendations to the Minister who administers the WHS Act about the needs of persons affected by serious work-related incidents; • give advice to Comcare, and contribute to the development and review of, Comcare's policies, practices and strategies for liaising with, and providing information to persons affected by serious work-related incidents; • give advice to AMSA, and contribute to the development and review of, AMSA's policies, practices and strategies for liaising with, and providing information to persons affected by serious work-related incidents that arise on a prescribed ship (within the meaning of the OHS(MI) Act or a prescribed unit (within the meaning of that Act) that is engaged in trade or commerce of the kind referred to in subsection 6(1) of that Act; and 40

• give advice to NOPSEMA, and contribute to the development and review of, their policies, practices and strategies for liaising with, and providing information to persons affected by serious work-related incidents on a facility in the Commonwealth offshore area, or out of the conduct of a business or undertaking in the Commonwealth offshore area. 212. Comcare, AMSA and NOPSEMA are the main Commonwealth WHS regulators. • Comcare's jurisdiction under the WHS Act extends to the Commonwealth, public authorities, and non-Commonwealth licensees, which are a small number of large companies. • AMSA is the relevant inspectorate under the OHS(MI) Act and is responsible for, among other things, ensuring obligations under the OHS(MI) Act are complied with (section 82 of the OHS(MI) Act). • NOPSEMA is the regulator of occupational health and safety for persons engaged in offshore petroleum operations or offshore greenhouse gas storage operations under the Offshore Petroleum and Greenhouse Gas Storage Act 2006. It also performs the function of the Offshore Infrastructure Regulator under the Offshore Energy Infrastructure Act 2021 with WHS inspectorate functions in relation to offshore infrastructure activities as defined. Clause 3D: Membership of the Advisory Committee members 213. This clause would provide that the Advisory Committee consists of 2 Co-Chairs and at least 3 other members. The number of Committee members could exceed the 5 prescribed under this clause subject to the discretion of the Minister and needs of the Committee. 214. The roles of the Co-Chairs would not be provided for in the WHS Act to provide flexibility and to ensure that the Advisory Committee can grow and adapt over time. It is envisaged that the first Co-Chair would represent the lived experience members of the Committee. The second Co-Chair would have skills and experience in facilitating meetings and could take on administrative tasks within the Committee. The roles would complement each other. Clause 3E: Appointment of Advisory Committee Members 215. Subclauses 3E(1) and 3E(2) would provide that Advisory Committee members are appointed by the Minister by written instrument, on a part time basis. The instrument appointing a member to the Advisory Committee is required to specify whether the member is appointed as the first Co-Chair or second Co-Chair. 216. Subclauses 3E(3) and 3E(4) deal with the period of appointment for members. Subclause 3E(3) would specify that a member's initial appointment term must not exceed 3 years. Subclause 3E(4) would provide that members are eligible for reappointment but must not hold office for a total of more than 9 years. 41

217. Subclause 3E(5) would prescribe eligibility criteria for the appointment of the first Co-Chair and other lived experience members. To be eligible for appointment under subclause 3E(5) the Minister must be satisfied that: • the person has, or has had, a serious injury or illness that arose out of the conduct of a business or undertaking; or • the person has lived experience as a family member or carer of another person who: o has died, if the person's death arose out of the conduct of a business or undertaking; or o has, or has had, a serious injury or illness that arose out of the conduct of a business or undertaking; or • the person has been affected, directly or indirectly, by a serious work-related incident suffered by another person. 218. The note to paragraph 3E(5)(c) specifies that examples of persons who might qualify for membership under that paragraph are friends and co-workers. It is not intended to include persons with a professional connection to a serious work-related incident such as an inspector, lawyer, or union representative. 219. To be eligible for appointment as first Co-Chair a person would have to meet the criteria for appointment under subclause 3E(5). 220. Subclause 3E(6) would set out the criteria for appointment as the second Co-Chair. A person may be appointed as the second Co-Chair if the Minister is satisfied they have relevant skills and experience in trauma and group facilitation. This person could also qualify under the criteria in subclause 3E(5), but does not need to for appointment under subclause 3E(6). 221. The second Co-Chair's skill and experience in relation to managing trauma and group facilitation would be necessary to ensure the effectiveness and functionality of the Advisory Committee and to help manage the risk of re-traumatisation and vicarious trauma for the Advisory Committee members and others who engage with the Advisory Committee. 222. Subclause 3E(7) would provide a discretionary power for the Minister to appoint an additional Advisory Committee member with relevant skills and experience in relation to trauma and grief. This person would not need to meet the eligibility criteria under subclause 3E(5) and could be appointed only once the Advisory Committee already has at least 5 members (including both the first and second Co-Chairs). The additional member would not be intended to provide counselling or personal support to members. Their role would be to provide another perspective to the Committee's advocacy and work. Clause 3F: Invited participants 223. Subclause 3F(1) would permit either Co-Chair, having consulted the other members of the Advisory Committee, to invite a person, body or organisation to participate in a 42

committee meeting. The purpose of this would be to encourage committee members to engage with external stakeholders with expertise in the matters discussed by the Advisory Committee to assist in executing its functions. Subclause 3F(6) would provide that the WHS Regulations may provide for or in relation to persons invited to participate in a meeting. 224. Subclause 3F(2) would allow either Co-Chair to terminate the invitation of an invited participant at any time, including during a meeting. 225. Subclause 3F(3) would clarify that the participation of an invited participant does not make them a member of the Advisory Committee. 226. Subclause 3F(4) would provide that an invited participant is entitled to be paid a travel allowance as prescribed by the WHS Regulations and that they must comply with any requirements imposed by the WHS Regulations in relation to that entitlement. For example, it is envisaged that an invited participant would be bound by any confidentiality requirements applying to members under the WHS Regulations. Subclause 3F(5) would clarify that regulations made in relation to the travel allowance referred to in subclause 3F(4) may identify an applicable rate of allowance payable to a class of office holders under a Remuneration Tribunal determination. The note to subclause 3F(5) would clarify that the rate of travel allowance could also be determined in other ways. Clause 3G: Acting appointments 227. Subclause 3G(1) would allow the Minister to appoint an Advisory Committee member (other than the second Co-Chair) to act as the first Co-Chair during a vacancy in their office or when the first Co-Chair is absent from duty, overseas or unable to perform the duties of the office. 228. Subclause 3G(2) would allow the Minister to appoint an Advisory Committee member (other than the first Co-Chair) or any other person to act as the second Co-Chair during a vacancy in their office or when the second Co-Chair is absent from duty, overseas or unable to perform the duties of the office. Subclause 3G(3) would provide that a person is only eligible for an acting appointment as the second Co-Chair if they meet the eligibility criteria for that position set out by subclause 3E(6). 229. Subclause 3G(4) would allow the Minister to appoint a person to act as an Advisory Committee member (other than a Co-Chair) during a vacancy in a committee member's office or when the member is absent from duty, overseas or unable to perform the duties of the office. Subclause 3G(5) would clarify that a person is only eligible for appointment as an acting Advisory Committee member if they meet the eligibility criteria for that position set out by subclause 3E(5). 230. Notes in subclauses 3G(1), (3) and (5) draw attention to sections 33AB and 33A of the Acts Interpretation Act 1901. Section 33AB has the effect that anything done by or in relation to a person purporting to act under an appointment (including an acting 43

appointment) is not invalid just because the appointment was not valid. Section 33A sets out the general rules that apply where a provision of an Act confers on a person or body, power to act in a particular office. Clause 3H: Remuneration and allowances 231. Subclause 3H(1) would provide that the remuneration and allowances to be paid to Advisory Committee members is to be determined by the Remuneration Tribunal. Subclause 3H(2) would provide that if no Remuneration Tribunal determination is in effect, the WHS Regulations would prescribe the amount to be paid. Clause 3J: Leave of absence 232. Subclause 3J(1) would provide for the Minister to grant a leave of absence to a Co- Chair of the Advisory Committee on the terms and conditions the Minister determines. 233. Subclause 3J(2) would provide that a Co-Chair of the Advisory Committee may grant a leave of absence to Advisory Committee members on the terms and conditions that a Co-Chair determines. Clause 3K: Disclosure of interests to the Minister 234. This clause would require any Advisory Committee member to give written notice to the Minister of all interests, pecuniary or otherwise, that the Advisory Committee member has or acquires and that conflict, or could conflict, with the proper performance of the Advisory Committee's functions. This would promote the integrity of the Advisory Committee and ensure its advice is as independent, impartial, and free from conflict as possible. 235. The interest disclosed could be either pecuniary or otherwise in nature - for example, a member of the Advisory Committee may be involved in, or a member of, another support group that the Advisory Committee promotes. Clause 3L: Disclosure of interests to the Advisory Committee 236. This clause would require committee members to disclose any interest (pecuniary or otherwise) in a matter that being considered or will be considered, by the Advisory Committee as soon as possible at an Advisory Committee meeting, and record in the meeting minutes. The WHS Regulations or the Advisory Committee itself may provide additional requirements in relation to how interests will be managed. Clause 3M: Resignation 237. This clause would provide that an Advisory Committee member may resign their appointment by providing the Minister a written notice of resignation. This resignation will take effect on the day it is received by the Minister, or at a later date specified in the written notice. 44

Clause 3N: Termination of appointment 238. This clause would provide for circumstances in which the Minister has discretion to terminate the appointment of an Advisory Committee member. Grounds for termination would include misbehaviour, bankruptcy, unauthorised extended leave, or the member's inability to perform the duties of their office. An Advisory Committee member's appointment may also be terminated should they fail (without reasonable excuse) to disclose a relevant interest to the Minister or Advisory Committee under clause 3K or 3L. 239. Subclause 3N(3) requires the Minister to terminate a member's appointment if they are absent, except on leave of absence, from 3 consecutive Advisory Committee meetings. Clause 3P: Other terms and conditions 240. This clause would provide that, in relation to matters not covered by this Bill, Advisory Committee members hold office on the terms and conditions that are to be determined by the Minister. Clause 3Q: Meetings and procedures 241. Subclause 3Q(1) would provide a non-exhaustive list of matters which regulations may be made in relation to. This includes: • convening meetings; • quorums; • selecting an Advisory Committee member to act as a Co-Chair at a meeting in a Co- Chair's absence; • resolving questions; • inviting experts to attend meetings; and • minute keeping. 242. Subclause 3Q(2) would specify that a resolution is taken to have been passed at a meeting if a majority of Advisory Committee members indicate agreement using an agreed method and all Advisory Committee members were informed of the proposed resolution (or reasonable efforts had been made to ensure that occurred). Subclause 3Q(3) clarifies that this method for determining a resolution would only apply if the Advisory Committee determines that it does and determines the method of indicating agreement with regard to a matter. Clause 3R: Administrative support 243. The Secretary of the Department which administers the WHS Act would be required to ensure that the Advisory Committee has the necessary administrative and other support to enable the committee to perform its functions efficiently and effectively. 45

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