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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
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 Honourable Tony Burke MP)
AMENDMENTS TO THE FAIR WORK LEGISLATION AMENDMENT
(CLOSING LOOPHOLES) BILL 2023
OUTLINE
These amendments would amend the Fair Work Legislation Amendment (Closing Loopholes)
Bill 2023 as read a third time on 29 November 2023 (Closing Loopholes Bill) by dividing
that Bill and incorporating Parts 1, 3, 4, 5, 5A, 7 (Division 2), 9, 10, 11, 12, 13, 15, 16, 17, 18
(as applicable) of Schedule 1, and Schedule 5 in a separate bill - the Fair Work Legislation
Amendment (Closing Loopholes No. 2) Bill 2023 (Closing Loopholes No. 2 Bill).
The amendments would also:
• Provide for updated commencement of certain provisions relating to Schedule 1,
Part 14 of the Closing Loopholes Bill.
• Provide for relevant consequential application and transitional provisions in a new
Schedule 1, Part 18, in both Bills.
• Amend Schedule 3 to the Closing Loopholes Bill by:
o Adding the Australian Border Force Commissioner and Australian Public
Service (APS) employees in the Australian Border Force to the list of 'first
responders' to which the presumptive liability provisions introduced by
Schedule 3 will apply.
o Removing the requirement for post-traumatic stress disorder (PTSD) to be
defined by reference to a prescribed legislative instrument. Instead, the
amendment would require an employee to be diagnosed by a legally qualified
medical practitioner, or psychologist, in accordance with the diagnostic criteria
set out in the Diagnostic and Statistical Manual of Mental Disorders, fifth
edition text revision, or a later edition of that manual if specified by the
Minister in a legislative instrument.
o Introducing a new mechanism in the Safety, Rehabilitation and Compensation
Act 1988 (SRC Act) that would provide the Minister with a discretionary
power to declare that the legislative presumptions for PTSD also apply to
additional classes of employees where the Minister is satisfied that the
incidence of PTSD among that class of employee is significantly greater than
the incidence of PTSD among the general public.
o Introducing a new power in the SRC Act that would allow for a Guide to be
prepared by Comcare and approved by the Minister, that must be complied
with when exercising the power to arrange rehabilitation assessments and
when requiring medical examinations after the commencement of the
authorising provisions.
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• Clarify the rules regarding entry to relevant workplaces in order to lawfully assist a
health and safety representative on request under a provision of a 'State or Territory
OHS law'. These changes will implement Recommendation 8 of the Review of the
Model Work Health and Safety Laws - Final Report (2018). This would also require
a statutory review of the proposed changes starting no later than 9 months after the
changes commence.
FINANCIAL IMPACT STATEMENT
These amendments have no direct financial impact.
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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 (Closing Loopholes Bill).
2. The amendments to the Closing Loopholes 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 provisions of the Closing Loopholes Bill that are relevant to human
rights are outlined below.
Post-traumatic stress disorder
4. The amendments would:
• Add the Australian Border Force Commissioner and Australian Public Service
(APS) employees in the Australian Border Force to the list of 'first responders' to
which the presumptive liability provisions introduced by Schedule 3 will apply.
• Remove the requirement for post-traumatic stress disorder (PTSD) to be defined by
reference to a prescribed legislative instrument. Instead, the amendment would
require an employee to be diagnosed by a legally qualified medical practitioner, or
psychologist, in accordance with the diagnostic criteria set out in the Diagnostic and
Statistical Manual of Mental Disorders, fifth edition text revision, or a later edition
of that manual if specified by the Minister in a legislative instrument.
• Introduce a new mechanism in the Safety, Rehabilitation and Compensation Act
1988 (SRC Act) that would provide the Minister with a discretionary power to
declare that the legislative presumptions for PTSD also apply to additional classes
of employees where the Minister is satisfied that the incidence of PTSD among that
class of employee is significantly greater than the incidence of PTSD among the
general public.
• Introduce a new power in the SRC Act that would allow for a Guide to be prepared
by Comcare and approved by the Minister, that must be complied with when
exercising the power to arrange rehabilitation assessments and when requiring
medical examinations after the commencement of the authorising provisions.
Assisting health and safety representatives
5. Clarify the rules regarding entry to relevant workplaces in order to lawfully assist a
health and safety representative on request under a provision of a State or Territory
OHS law. These changes will implement Recommendation 8 of the Review of the
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Model Work Health and Safety Laws - Final Report (2018). This would also require a
statutory review of these proposed changes to the entry regime for HSRs' assistants,
starting no later than 9 months after the relevant changes commence.
Human rights implications
6. The definition of 'human rights' in the Human Rights (Parliamentary Scrutiny) Act
2011 relates to the core seven United Nations human rights treaties. The amendments
engage 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 social security, including social insurance under Article 9 of the
ICESCR.
Right to work and rights in work
7. Rights to work and rights in work are positively engaged by proposed Part 16A, as it
strengthens the ability of health and safety representatives (HSRs) appointed under
'State or Territory OHS laws' to access appropriate expertise. The United Nations
Committee on Economic Social and Cultural Rights has stated that the right to work in
Article 6(1) of the ICESCR includes the element that 'the right to work should be
protected, by providing the worker with just and favourable conditions of work, in
particular to safe working conditions ... '. Article 7 of the ICESCR provides that
everyone has the right to the 'enjoyment of just and favourable conditions of work,
which ensure, in particular ... [s]afe and healthy working conditions'. Similarly, the ILO
recognises a safe and healthy working environment as a fundamental right at work,
within the framework of the Declaration on Fundamental Principles and Rights at Work
1998, as amended in 2022.
8. The proposal would empower officials of registered organisations without a Fair Work
entry permit to enter workplaces, on request from an HSR (under a 'State or Territory
OHS law'), to provide assistance. Improving HSRs' access to appropriate assistance
will help them better discharge their statutory functions, leading to better health and
safety outcomes at their workplaces.
Right to social security, including social insurance
9. Article 9 of the ICESCR provides for the right of everyone to social security, including
social insurance. General Comment 19 by the Committee on Economic, Social and
Cultural Rights elaborates on Article 9, stating that the 'States parties should ... ensure
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the protection of workers who are injured in the course of employment or other
productive work'.1
10. Workers' compensation is analogous to social insurance in that it provides payment of
wages and medical costs to employees for injuries occurring as a result of their
employment.
11. The amendments to the SRC Act would positively engage the right to social security by
removing the barriers that first responders face when making a workers' compensation
claim and to provide a less onerous claims process for first responders suffering from
PTSD. The amendments would also positively engage the right to social security
by implementing improved guidance on the use of rehabilitation assessments and
independent medical examinations to ensure timely decision making and effective
claims management under the SRC Act.
Conclusion
12. 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
1
Committee on Economic, Social and Cultural Rights, General Comment 19: The Right to Social Security (art.
9), U.N. Doc E/C.12/GC/19 (2008), [17].
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NOTES ON AMENDMENTS
In these notes on amendments, the following abbreviations are used:
Abbreviation Definition
APS Australian Public Service
Boland Review Review of the Model Work Health and Safety Laws - Final
Report (2018)
Closing Loopholes Act Fair Work Legislation Amendment (Closing Loopholes) Act
2023
Closing Loopholes Bill Fair Work Legislation Amendment (Closing Loopholes) Bill
2023, the third reading of which was agreed to on
29 November 2023
Closing Loopholes No. 2 Fair Work Legislation Amendment (Closing Loopholes No. 2)
Act Act 2023
Closing Loopholes No. 2 Fair Work Legislation Amendment (Closing Loopholes No. 2)
Bill Bill 2023
FW Act Fair Work Act 2009
HSR Health and safety representative
Minister Minister for Employment and Workplace Relations
WHS Act Work Health and Safety Act 2011 (Cth)
Dividing the Bill
Amendment 1
13. This amendment would provide for the Closing Loopholes Bill to be divided, with the
following provisions to be incorporated in amending Schedules to a separate bill, the
Closing Loopholes No. 2 Bill:
• Schedule 1, Part 1--Casual employment
• Schedule 1, Part 3--Enabling multiple franchisees to access the single-enterprise
stream
• Schedule 1, Part 4--Transitioning from multi-enterprise agreements
• Schedule 1, Part 5--Model terms
• Schedule 1, Part 5A--Intractable bargaining workplace determinations
• Schedule 1, Division 2 of Part 7--Workplace delegates' rights
• Schedule 1, Part 9--Sham arrangements
• Schedule 1, Part 10--Exemption certificates for suspected underpayment
• Schedule 1, Part 11--Penalties for civil remedy provisions
• Schedule 1, Part 12--Compliance notice measures
• Schedule 1, Part 13--Withdrawal from amalgamations
• Schedule 1, Part 15--Definition of employment
• Schedule 1, Part 16--Provisions relating to regulated workers
• Schedule 1, Part 17--Technical amendment
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• Schedule 1, Part 18--Application and transitional provisions
• Schedule 5--Amendment of the Coal Mining Industry (Long Service Leave)
Administration Act 1992.
Amendment 2
14. This amendment would provide for the formal provisions of the Closing Loopholes
No. 2 Act, including specifying the long title and, at clause 1, the short title.
15. The table in clause 2 sets out the commencement provisions of the Closing Loopholes
No. 2 Bill.
16. Clause 3 would give effect to the provisions in the Schedules to the Closing Loopholes
No. 2 Bill.
Amendment 3
17. This amendment would replace the application and transitional clauses with only those
relevant application and transitional clauses, having regard to the contents of the
Closing Loopholes No. 2 Bill as provided for by Amendment 1. The relevant
application and transitional provisions are otherwise unchanged in substance. They
would amend Schedule 1 (Application, saving and transitional provisions relating to
amendments to this Act) to the FW Act.
Amendment 4
18. This amendment would update the long title of the Closing Loopholes Act to reflect the
provisions in that Act, which would be as follows:
• Schedule 1, Part 2--Small business redundancy exemption
• Schedule 1, Part 6--Closing the labour hire loophole
• Schedule 1, Division 1 of Part 7--Workplace delegates' rights
• Schedule 1, Part 8--Strengthening protections against discrimination
• Schedule 1, Part 14--Wage theft
• Schedule 1, Part 14A--Amendments relating to mediation and conciliation
conference orders made under section 448A of the Fair Work Act 2009
• Schedule 1, Part 18--Application and transitional provisions
• Schedule 2--Amendment of the Asbestos Safety and Eradication Agency Act 2013
• Schedule 3--Amendment of the Safety, Rehabilitation and Compensation Act 1988
• Schedule 4--Amendment of the Work Health and Safety Act 2011 (Cth).
Amendment 5
19. This amendment would provide updated commencement provisions at clause 2 of the
Closing Loopholes Bill.
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Amendment 6
20. This amendment would insert the relevant same consequential application and
transitional clauses arising from the amendments made by the Closing Loopholes Bill
to Schedule 1 (Application, saving and transitional provisions relating to amendments
to this Act) to the FW Act, as applicable to the provisions set out in Amendment 4.
Commencement of wage theft
Amendment 1
21. This amendment would provide updated commencement provisions at clause 2 of the
Closing Loopholes Bill for certain provisions relating to Schedule 1, Part 14--wage
theft.
22. This amendment would clarify that provisions in Schedule 1, Part 14 do not commence
at all until the day after the Minister has for the first time declared a Voluntary Small
Business Wage Compliance Code under subsection 327B(1) of the FW Act and the
provisions cannot commence at all before 1 January 2025. The Minister would be able
to make this declaration after the Bill receives Royal Assent, in reliance on section 4 of
the Acts Interpretation Act 1901. Section 4 provides that a power to make a legislative
instrument may be exercised prior to the commencement of the provision but after it is
enacted.
Assisting health and safety representatives
Amendment 1
23. This amendment would insert a new item into the commencement table for the Closing
Loopholes No. 1 Bill, to specify the commencement date for proposed Schedule 1,
Part 16A.
Amendment 2
24. This amendment would insert new clause 4A into the Closing Loopholes No. 1 Bill, to
provide for the statutory review of the operation of proposed Part 16A and the tabling
of the resulting report in each House of Parliament.
25. New clause 4A sets out the requirements of the proposed statutory review, and provides
that it must start no later than 6 months after new Part 16A commences. This proposed
review is in addition to the general statutory review proposed for all of the measures
provided for in the Bill.
Amendment 3
26. This amendment would insert Part 16A into the Closing Loopholes No. 1 Bill.
27. 'State or Territory OHS laws' are harmonised across jurisdictions by reference to the
'model' work health and safety (WHS) laws published by Safe Work Australia on its
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website. The exception is Victoria, which also has general WHS laws that are
substantially similar to the 'model' WHS laws.
28. 'State or Territory OHS laws' generally provide for HSRs in workplaces. HSRs are
workers who are elected to represent the health and safety interests of their work group.
They are able to exercise a range of powers to discharge their representative function,
including by (among other things) requesting the assistance of a person whenever
necessary. In general, the person conducting the business must allow a person assisting
an HSR for the work group to have access to the workplace if that is necessary to
enable the assistance to be provided. Provision is made for when access may be refused
(for example, on reasonable grounds).
29. For example, an HSR might ask for a health and safety manager, a hearing specialist or
an occupational health nurse to be present to give advice on technical health or safety
matters. However, in some cases, an HSR may ask for someone with appropriate
experience and knowledge from their relevant union to assist them.
30. In Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470;
[2017] FCAFC 89 (Powell), the Federal Court of Australia held that officials who enter
a relevant workplace to assist an HSR are exercising a 'State or Territory OHS right',
so must hold a Fair Work entry permit and meet all applicable entry requirements under
the Fair Work Act, Part 3-4. Until this decision, the prevailing view was that a
Fair Work entry permit was not required to be used in these circumstances.
31. In December 2018, the Boland Review considered the effect of Powell, among other
things. Recommendation 8 of that review provided that consideration should be given
to 'how to achieve the policy intention that a union official accessing a workplace to
provide assistance to an HSR is not required to hold an entry permit under the
[FW Act] or another industrial law'.
32. The purpose of this item is to implement Recommendation 8 of the Boland Review
(and reverse the effect of Powell), subject to appropriate safeguards imposed by the
FW Act. Entry of officials to a relevant workplace to assist an HSR would continue to
be regulated by the applicable 'State or Territory OHS law'.
33. This item would add new subsections (4) and (5) to section 494 of the FW Act, to
disapply the Fair Work entry permit requirement in subsection 494(1), and related
permit requirements (sections 495 to 498), for entry by an official to assist an HSR.
34. Subsection 494(5) would clarify that the safeguards afforded by sections 499 to 504 are
to apply with the necessary modifications.
35. Paragraph 494(5)(a) would ensure that sections 499 to 504 continue to apply whether or
not the official is a Fair Work entry permit holder.
36. Paragraph 494(5)(b) would extend the operation of the specified provisions, which are
expressed to apply to permit holders only (sections 499 to 502), so they apply likewise
to officials of registered organisations who are not permit holders.
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37. Paragraph 494(5)(c) would clarify that the specified provisions (section 499 to 504)
continue to apply in the context of an official giving assistance to an HSR, irrespective
of how the provision is framed to apply. For example, lawful entry to assist an HSR
would be deemed to be 'authorised by' or 'exercised in accordance with' Part 3-4 (as
the case may be). This is so even if the source of the entitlement may also reasonably
be described as being the applicable State or Territory OHS law.
38. Paragraph 494(5)(d) would extend the prohibition on the unauthorised use or disclosure
of information or documents in section 504 of the FW Act. The provision, as modified,
would apply to information or documents an official obtains in the course of assisting
an HSR, and prohibit a person from using it for a purpose unrelated to the official's role
as the HSR's assistant (subject to the specified exceptions).
Post-traumatic stress disorder, and rehabilitation assessments and examinations
Amendment 1
39. This amends the change to the commencement referred to in Amendment 2 - Dividing
the Bill above, and would change the commencement of Schedule 3, Part 1 from
28 days after Royal Assent to the day after Royal Assent due to the removal of the
proposed subsection 7(12). This amendment would also provide that Schedule 3, Part 2
will commence 6 months after Royal Assent to allow time for the 'Guide for Arranging
Rehabilitation Assessments and Requiring Examinations' (the Guide) to be prepared.
Amendment 2
40. This amendment would amend the heading of Schedule 3 to introduce the subheading
'Part 1--Post-traumatic stress disorder' to reflect the second part of the Schedule to be
introduced.
Amendment 3
41. This amendment would replace the term 'first responders' with 'certain employees' in
the relevant subheading, to allow for an additional class of persons to whom the
presumption would apply, being those declared by the Minister under proposed
subsection 7(13A).
42. The term 'certain employees' would include first responders.
Amendment 4
43. Paragraphs 7(11)(a) and (b) set out that if certain circumstances were met, a person's
employment as a first responder was presumed to have contributed to, to a significant
degree, to the contraction of post-traumatic stress disorder.
44. This amendment would amend the circumstances in which the presumption is to apply.
45. The new requirement in paragraph (a) would provide that a person must have been
diagnosed by a legally qualified medical practitioner (including a GP or psychiatrist) or
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psychologist as suffering, or having suffered, from post-traumatic stress disorder in
accordance with the Diagnostic and Statistical Manual of Mental Disorders, fifth
edition text revision (DSM5TR), published by the American Psychiatric Association in
2022. This publication is commonly accessible by the practitioners required to diagnose
the condition, and relevant extracts are available on the internet. Subparagraph (ii)
would provide that the Minister may declare a later edition of the Manual to apply by
legislative instrument.
46. The requirement in paragraph (b) would retain the requirement that a person be defined
as a 'first responder' in accordance with subsection (13), and would add that as an
alternative, a person may satisfy the requirement if they fall within a class of employees
declared by the Minister by legislative instrument under proposed subsection (13A).
Amendment 5
47. This amendment would specify that the members of a class of employees declared
under proposed subsection (13A) are persons to whom the presumption may apply.
Amendment 6
48. Paragraph 7(12) provided a mechanism by which the Minister could specify, by
legislative instrument, the circumstances in which a person was deemed to be suffering
from post-traumatic stress disorder. This mechanism is superfluous as a result of the
amendments to paragraph 7(11)(a), so this amendment would remove that power.
Amendment 7
49. This amendment would update a reference to subparagraph (11)(b)(i) in
paragraph 7(13) to reflect the changes made by these amendments.
Amendment 8
50. This amendment would amend paragraph 7(13) to provide that the Australian Border
Force Commissioner and APS employees in the Australian Border Force are 'first
responders' for the purposes of subparagraph (11)(b)(i). As a result, the presumptive
liability provisions introduced by Schedule 3 for PTSD will apply to the Australian
Border Force Commissioner and to APS employees in the Australian Border Force.
Amendment 9
51. This amendment would allow the Minister, in certain circumstances, to declare by
legislative instrument that the legislative presumption applies to a class of employees
for the purpose of subparagraph 7(11)(b)(ii).
52. In order to make a declaration, the Minister would be required to be satisfied that the
incidence of post-traumatic stress disorder among a class of employees is significantly
greater than the incidence of post-traumatic stress disorder in the general population.
Such evidence that would satisfy the Minister may include epidemiological evidence.
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Amendments 10 and 11
53. These amendments would omit references to 'Schedule' and replace them with 'Part' to
reflect the changes made by these amendments.
Amendment 12
54. This amendment would introduce new Part 2 to Schedule 3, which would provide for a
legislative instrument to be made by Comcare, and approved by the Minister, that must
be complied with by rehabilitation authorities and relevant authorities in certain
circumstances.
Subsection 4(1)
55. This amendment would introduce a new definition into the SRC Act, in respect of the
'approved Rehabilitation Assessments and Examinations Guide'. The term is to be
defined to mean the Guide prepared by Comcare in accordance with proposed
section 57A, as approved by the Minister, as in force from time to time.
After subsection 36(3)
56. This amendment would provide that in deciding whether to arrange for a rehabilitation
assessment under subsection (1) or to require an examination under subsection (3), the
rehabilitation authority must comply with the Guide. 'Rehabilitation authority' is
defined in existing section 4.
After subsection 57(1)
57. This amendment would provide that in deciding whether to arrange for an examination
under existing subsection 57(1), the relevant authority must comply with the Guide.
'Relevant authority' is defined in existing section 4.
Subsection 57(6)
58. This amendment would repeal subsection 57(6), as this requirement would be contained
within the matters provided for by the Guide.
After section 57
59. This amendment would introduce new section 57A to the SRC Act, which would
provide that Comcare must, in consultation with the Safety Rehabilitation and
Compensation Commission (Commission), prepare a written document called the
'Guide for Arranging Rehabilitation Assessments and Requiring Examinations' (the
Guide). Comcare would be able to vary or revoke the Guide from time to time, in
consultation with the Commission, under proposed subsection 57A(5). The Minister
would be required to approve the Guide, and any variation or revocation of the Guide
under proposed subsection 57A(6). The Guide, as approved by the Minister, would be a
legislative instrument made by the Minister under proposed subsection 57A(7).
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60. Proposed subsection 57A(2) is to specify the object of the Guide, namely to support
ethical, transparent and accountable decision making in relation to arranging a
rehabilitation assessment of an employee under subsection 36(1), or requiring an
employee to undergo an examination under subsection 36(3) or 57(1), including
appropriate consideration of the employee's personal circumstances.
61. Proposed subsection 57A(3) would provide that the Guide prepared by Comcare under
section 57A must:
• provide that, for the purposes of a rehabilitation assessment or examination of an
employee, information in relation to the employee should be sought from the
employee's treating practitioner, which is to be relied upon as much as possible
before a referral is made to an independent medical practitioner
• specify the circumstances in which it is appropriate to require an employee to
undergo a rehabilitation assessment or examination
• specify limitations on the frequency and number of rehabilitation assessments or
examinations that an employee may be required to undergo
• specify the qualifications of the person or, if required under section 36, the panel of
persons who may conduct a rehabilitation assessment or an examination of an
employee
• require the rehabilitation authority or the relevant authority (as the case requires) to
seek, and take into account, the views of an employee about the selection of the
person or, if required under section 36, the panel of persons who are to conduct the
rehabilitation assessment or examination, and
• require that an employee who is required to undergo a rehabilitation assessment or
examination be given a notice of the employee's rights relating to the rehabilitation
assessment or examination.
62. Proposed subsection 57A(4) would provide that the Guide may provide for any other
relevant matter.
Subsection 60(1) (definition of determination)
63. This provision would provide that decisions made under section 57 would be
'determinations' for the purposes of section 60. The effect of this amendment is that a
claimant, the Commonwealth, or a Commonwealth authority may request that a
determining authority reconsider a decision made under section 57. The determining
authority would also have the power to reconsider such a decision on its own motion.
The resulting reconsideration decision would then be a reviewable decision, reviewable
by the Administrative Appeals Tribunal under section 64.
Application of amendments
64. The application provisions would provide that these amendments would apply to
examinations under subsections 36(3) or 57(1), or assessments under subsection 36(1),
that take place after commencement. This would be regardless of when the employee
sustained the injury, or when the examination or assessment was arranged.
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