Penny Wong (SA, Australian Labor Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

I seek leave to move a motion to divide the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 into two bills and to provide for their consideration, as circulated in the Senate.

Leave not granted.

That is disappointing, isn't it! Pursuant to contingent notice, I move:

That so much of the standing orders be suspended as would prevent me moving a motion to provide for the consideration of a matter, namely a motion to allow a motion concerning the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 to be moved and determined immediately.

Opposition senators interjecting—

I hear the interjections of those opposite. Unsurprisingly, at the end of a sitting session, what we see again is people on that side returning to home base—that is, 'We want lower wages and fewer protections for Australia's workers.' I was here for the Work Choices legislation and the various iterations of coalition attempts to undermine working conditions and wages in this country, and we know they will never change. I've got no doubt that, during this debate, they will make a lot of comments about procedure and process. The reality is that all of those arguments are a smokescreen, because we know that, no matter how much process or time there is to look at industrial relations legislation, the instinct and reflex of those opposite will always be for lower wages and fewer protections for Australian workers. It is in their DNA.

The government is seeking to close the loopholes that certain employers use to undercut wages, conditions and safety for Australian workers. It will close the loophole that allows some employers to use labour hire to undercut agreed rates of pay; close the loophole whereby if a worker steals money from the till it's a criminal offence, as it should be, but if an employer steals their workers' wages it's not; close the loophole that allows large businesses to claim small-business exemptions during insolvency to avoid redundancy payments; and close the loopholes that undermine workers' safety by introducing a new criminal offence for industrial manslaughter along with providing better support for first responders with PTSD, better protecting workers who are subjected to family and domestic violence from discrimination at work and expanding the functions of the Asbestos Safety and Eradication Agency to include silica. After today, the labour hire loophole will be closed, wage theft will be made a crime and workers will benefit from safer workplaces.

The passage of these reforms this year will be life changing for workers across Australia—for those being ripped off through labour hire loopholes, for those whose wages are being stolen by their employer, for those who are dealing with PTSD on the front line and for those subjected to discrimination at work because they are experiencing family and domestic violence. We thank crossbench senators, particularly Senators Lambie and Pocock, for their constructive engagement on this bill. We look forward to continuing to engage with them on the remaining elements of the bill in the new year. The other important elements of closing loopholes include minimum standards for digital platform gig workers, road transport industry reforms and a better deal for casual workers who want to become permanent. The government is committed to proceeding with every remaining clause of the bill at the earliest opportunity next year, including the additional measures that were made through amendments in the House.

Colleagues, the Senate has already agreed to the vast majority of these measures and argued on more than one occasion that they should be passed immediately. Those measures relate to first responders with PTSD, family and domestic violence discrimination, protection for workers to stop them missing out on redundancy payments they deserve and the expansion of the functions of the Asbestos Safety and Eradication Agency. The additional measures in today's bill which have been agreed are criminalising wage theft and closing the labour hire loophole. All of these are important measures in their own right, but they are also important to ensure that we protect the integrity of Australia's industrial relations system. We are protecting the integrity of the wages and conditions that have been fought for and earned across our economy. This is about that integrity, and this is about ensuring that protection of wages and conditions continues in this country.

This a key part of the government's plan to help Australians with the cost of living. We know Australians are doing it tough. Stopping the underpayment of workers is an important aspect of dealing with this. We know those opposite—including from the interjections that we've had in this fortnight—have always had a view that one of the ways you run an economy is to ensure that you keep wages low. We heard Senate Hume during question time talking about why wages rises were bad idea because they contributed to inflation. They will never change, no matter what they say to Australian workers. They spent a decade in government deliberately keeping wages low. We know that they will always take that view. The Albanese Labor government takes a different view, and I move:

That the question be now put.

Sue Lines (President) Share this | Link to this | Hansard source

Senator Birmingham?

Simon Birmingham (SA, Liberal Party, Shadow Minister for Foreign Affairs) Share this | Link to this | Hansard source

I rise on a point of order. Can I seek clarification, at least? The very first part of this motion says that the bill be divided into two bills, in accordance with the amendments on sheet PU108. Nobody has seen it. Nobody has seen sheet PU108. What is it that we're being asked to divide these two bills into?

Sue Lines (President) Share this | Link to this | Hansard source

Senator Birmingham.

Simon Birmingham (SA, Liberal Party, Shadow Minister for Foreign Affairs) Share this | Link to this | Hansard source

Here it is now—literally now!

Sue Lines (President) Share this | Link to this | Hansard source

Senator Birmingham! Senator Birmingham!

Simon Birmingham (SA, Liberal Party, Shadow Minister for Foreign Affairs) Share this | Link to this | Hansard source

Literally now.

Sue Lines (President) Share this | Link to this | Hansard source

Senator Birmingham! Senator Birmingham!

Order! Order! Senator Birmingham, I have called you about seven or eight times. Order across the chamber. You stood on a point of order. You should have then resumed your seat. You now have the document that you stood on. There is a motion before the chair. The question is that the question be now put on the motion to suspend standing orders, as moved by Senator Wong.

Sue Lines (President) Share this | Link to this | Hansard source

The question now is that the motion to suspend standing orders be agreed to.

Penny Wong (SA, Australian Labor Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

I move:

That a motion relating to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 may be moved immediately and determined without amendment or debate.

And I move:

That the question be now put.

Sue Lines (President) Share this | Link to this | Hansard source

The question is that the motion as moved by the minister be agreed to.

A division having been called and the bells being rung—

Senator Hughes! Senator Hughes, (1) you are disorderly, and (2) you are not in your correct spot.

Sue Lines (President) Share this | Link to this | Hansard source

The question now is that the procedural motion moved by the minister be agreed to.

Penny Wong (SA, Australian Labor Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

I move:

That—

(1) The Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 be divided into two bills and amended, in accordance with the amendments on sheet PU108.

(2) The bills be printed.

(3) Further consideration of the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 be an order of the day for a later hour and further consideration of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 be an order of the day for 6 February 2024.

(4) The Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 be called on immediately and, until the bill is finally determined, the routine of business shall be consideration of the bill, only.

(5) The questions on all remaining stages of the bill be put at midday.

(6) Paragraph (5) operate as a limitation of debate under standing order 142.

(7) After consideration of the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 has concluded, the routine of business till 1.30 pm be:

(a) consideration of private senators' bills, for up to 1 hour and 10 minutes; and

(b) government business only.

(8) The hours of meeting for Thursday, 7 December 2023 be from 9 am to adjournment and the routine of business after motions to take note of answers be as follows:

(a) notices;

(b) a report of the Selection of Bills Committee;

(c) postponement and rearrangement of business;

(d) formal motions;

(e) condolence motion relating to the Honourable Gerard Leslie (Gerry) Hand;

(f) tabling and consideration of reports and documents for up to 60 minutes; and

(g) consideration of general business notice of motion no. 441, for not more than 30 minutes.

(9) Divisions may take place between 1.30 pm and 2 pm and after 4.30 pm, until the Senate has concluded the consideration of formal motions.

(10) The Senate shall adjourn without debate on the motion of a minister.

(11) Future proceedings of the inquiry of the Employment and Education Legislation Committee into the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 be confined to consideration of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023.

Government's amendments on sheet PU108

(1) That:

(a) the Bill be divided; and

(b) the following provisions of Schedule 1 to the Bill be incorporated in an amending Schedule to a separate bill under the heading "Schedule 1—Main amendments":

(i) Part 1 (casual employment);

(ii) Part 3 (enabling multiple franchisees to access the single-enterprise stream);

(iii) Part 4 (transitioning from multi-enterprise agreements);

(iv) Part 5 (model terms);

(v) Part 5A (intractable bargaining workplace determinations);

(vi) Division 2 of Part 7 (workplace delegates' rights—amendments commencing 1 July 2024);

(vii) Part 9 (sham arrangements);

(viii) Part 10 (exemption certificates for suspected underpayment);

(ix) Part 11 (penalties for civil remedy provisions);

(x) Part 12 (compliance notice measures);

(xi) Part 13 (withdrawal from amalgamations);

(xii) Part 15 (definition of employment);

(xiii) Part 16 (provisions relating to regulated workers);

(xiv) Part 17 (technical amendment);

(xv) Part 18 (application and transitional provisions); and

(c) Schedule 5 (amendment of the Coal Mining Industry (Long Service Leave) Administration Act 1992) also be included in the separate bill.

(2) That the following be inserted at the beginning of the separate bill:

A Bill for an Act to amend the law relating to workplace relations, certain independent contractors, unfair contracts, the road transport industry and registered organisations, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act is the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

(3) That Part 18 of Schedule 1 to the separate bill be omitted and substituted with the following:

Part 18 — Application and transitional provisions

Fair Work Act 2009

308 In the appropriate position in Schedule 1

Insert:

Part 16 — Main amendments made by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023

Division 1 — Definitions

100 Definitions

In this Part:

amended Act means this Act as amended by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023.

amending Act means the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023.

Division 2 — Amendments made by Part 1 of Schedule 1 to the amending Act

101 Resolving uncertainties and difficulties about interaction between fair work instruments and the definition of casual employee and employee choice

(1) The FWC may make a determination varying a fair work instrument that is a modern award, enterprise agreement or workplace determination that was made before the commencement of this clause:

(a) for an enterprise agreement or workplace determination—on application by an employer, employee or employee organisation covered by the enterprise agreement or workplace determination; or

(b) for a modern award:

(i) by the FWC on its own initiative; or

(ii) on application by an employer organisation or employee organisation entitled to represent the industrial interests of an employer or employee covered by the award.

(2) The FWC may make a determination varying the instrument:

(a) to resolve an uncertainty or difficulty relating to the interaction between the instrument and any of the following:

(i) the definition of casual employee in section 15A of the amended Act (including to deal with uncertainty or difficulty arising from the circumstances in which employees are to be employed as casual employees under the agreement);

(ii) the provisions of Division 4A of Part 2-2 of the amended Act; or

(b) to make the instrument operate effectively with that section or those provisions.

(3) A variation of a fair work instrument under this clause operates from the day specified in the determination, which may be a day before the determination is made.

(4) If the determination relates to a modern award, the FWC must publish the award as varied as soon as practicable on the FWC's website or by any other means the FWC considers appropriate.

102 Application of amendments

Application of definition of casual employee

(1) Section 15A of the amended Act applies on and after commencement in relation to employment relationships entered into before, on or after commencement.

(2) Despite subclause (1), for the purposes of applying section 15A of the amended Act on and after commencement in relation to employment relationships entered into before commencement:

(a) conduct of an employer and employee that occurred before commencement is to be disregarded for the purposes of applying subsections 15A(2) and (3) in relation to that employee; and

(b) if an employee's contract of employment immediately before commencement included a term of a kind referred to in subsection 15A(4)—that subsection is taken not to apply in relation to the employee for the remainder of the term of that contract.

Continuing casual employees

(3) For the purposes of subclause (1), an employee who was, immediately before commencement, a casual employee of an employer within the meaning of section 15A as in force at that time, is taken to be a casual employee of the employer within the meaning of section 15A of the amended Act on and after commencement.

(4) An employer of an employee referred to in subclause (3) must, despite subsection 125B(2), give the employee a Casual Employment Information Statement within 3 months after commencement.

Application of employee choice and casual conversion provisions

(5) The amendments of Division 4A of Part 2-2 made by the amending Act apply on and after commencement in relation to employment relationships entered into before, on or after commencement.

(6) For the purposes of applying subclause (5) in relation to employment relationships entered into before commencement:

(a) any period of employment as a casual employee that occurred before commencement is to be disregarded for the purposes of paragraphs 66AAB(c) and (d) of the amended Act; and

(b) paragraph 66AAB(d) of the amended Act is taken to include a requirement that in the period referred to in that paragraph the employee has not:

(i) been given a response before commencement by the employer under section 66G refusing a request made by the employee under section 66F; or

(ii) been given a response after commencement by the employer under section 66G refusing a request made by the employee under section 66F (as those sections continue to apply because of subclauses (6A) and (6B)).

(6A) Despite subclause (5), section 66F as in force immediately before commencement continues to apply after commencement in relation to employment relationships entered into before commencement for a period of:

(a) for an employer that is a small business employer—12 months from commencement; or

(b) for an employer that is not a small business employer—6 months from commencement.

(6B) Despite subclause (5), sections 66G to 66J as in force immediately before commencement continue to apply after commencement in relation to:

(a) a request made before commencement by an employee under section 66F for which, immediately before commencement, a response under section 66G or a notice under section 66J had not been given; or

(b) a request made after commencement by an employee under section 66F (as that section continues to apply because of subclause (6A)).

(7) Despite subclause (5), sections 66M and 739 as in force immediately before commencement continue to apply after commencement to:

(a) disputes that arose before commencement relating to the operation of Division 4A of Part 2-2; and

(b) disputes that arise after commencement relating to the operation of sections 66F to 66J (as those sections continue to apply because of subclauses (6A) and (6B)).

Definitions

(8) In this clause:

commencement means the commencement of Part 1 of Schedule 1 to the amending Act.

103 Transitional provision

For the purposes of applying section 66L of this Act during the period beginning when this clause commences and ending when Part 1 of Schedule 1 to the amending Act commences, the reference to "this Division" in that provision is taken to include a reference to that Division as amended by that Part.

Division 3 — Amendments made by Part 4 of Schedule 1 to the amending Act

104 Replacement agreements

(1) Subsections 58(4) and (5), as inserted by the amending Act, apply in relation to single-enterprise agreements made after the commencement of Part 4 of Schedule 1 to that Act, whether the single interest employer agreement or supported bargaining agreement was made before or after that commencement.

(2) Section 180B and subsection 240A(4), as inserted by the amending Act, apply in relation to single interest employer agreements and supported bargaining agreements whether made before or after the commencement of Part 4 of Schedule 1 to that Act.

(3) Subsections 236(1B) and 238(2), as inserted by the amending Act, apply in relation to applications made after the commencement of Part 4 of Schedule 1 to that Act, whether the single interest employer agreement or supported bargaining agreement was made before or after that commencement.

105 Variation of supported bargaining authorisations

Subsection 245(2), as inserted by the amending Act, applies in relation to enterprise agreements and workplace determinations that come into operation before or after the commencement of Part 4 of Schedule 1 to that Act.

106 Application of better off overall test to replacement agreements

Sections 193 and 193A, as amended by the amending Act, apply in relation to single-enterprise agreements made on or after the commencement of Part 4 of Schedule 1 to that Act, whether the supported bargaining agreement or single interest employer agreement was made before or after that commencement.

Division 4 — Amendments made by Part 5 of Schedule 1 to the amending Act

107 Model terms and enterprise agreements

(1) Despite the amendments made by Part 5 of Schedule 1 to the amending Act, sections 202, 205 and 737, as in force immediately before the commencement of that Part, continue to apply in relation to an enterprise agreement if:

(a) before that commencement, the employer concerned asks the employees to approve the agreement by voting for it; and

(b) by that vote, the employees approve the agreement; and

(c) the FWC approves the agreement.

(2) In deciding, after the commencement of that Part, whether to approve the agreement mentioned in subclause (1) (in that form), the FWC must disregard the amendments made by that Part.

108 Model terms and copied State instruments

Despite the amendments made by Part 5 of Schedule 1 to the amending Act, section 768BK, as in force immediately before the commencement of that Part, continues to apply in relation to a model term that is taken, before that commencement, to be a term of a copied State instrument.

109 Disallowance — model terms made before commencement

Section 42 (disallowance) of the Legislation Act 2003 does not apply to a determination made in the exercise of a power under subsection 202(5), 205(3), 737(1) or 768BK(1A) of the amended Act, before the commencement of Part 5 of Schedule 1 to the amending Act, relying on subsection 4(1) of the Acts Interpretation Act 1901.

Note: Subsection 4(1) of the Acts Interpretation Act 1901 provides for the exercise of powers between the passing and commencement of an Act.

Division 5 — Amendments made by Part 5A of Schedule 1 to the amending Act

110 Application of amendments — intractable bargaining workplace determinations

(1) This clause applies to the following provisions:

(a) section 270A of the amended Act;

(b) subsection 274(3) of the amended Act.

(2) The provisions apply in relation to determinations made on or after the commencement of Part 5A of Schedule 1 to the amending Act (including determinations in relation to which the declaration concerned, or the application for the declaration concerned, was made before that commencement).

(3) The provisions also apply in relation to determinations made before that commencement, in the circumstances specified in clause 111.

111 Application of amendments to intractable bargaining workplace determinations made before commencement

(1) This clause applies in relation to an intractable bargaining workplace determination made before the commencement of Part 5A of Schedule 1 to the amending Act (the original determination).

(2) On application by an employer, employee or employee organisation covered by the original determination, the FWC must make a determination (a variation) varying the original determination where required so as to give effect to the provisions to which clause 110 applies.

(3) An application under subclause (2) must be made before the end of the period of 12 months commencing on the day Part 5A of Schedule 1 to the amending Act commences.

(4) The FWC may make a variation despite paragraph 603(3)(c).

(5) Any variation must be made by a Full Bench.

(6) A variation operates from the day specified by the FWC in the variation, which must not be a day before the variation is made.

Division 6 — Amendments made by Part 9 of Schedule 1 to the amending Act

112 Application of amendments

Section 357, as amended by Part 9 of Schedule 1 to the amending Act, applies in relation to representations made on or after the commencement of that Part.

Division 7 — Amendments made by Part 10 of Schedule 1 to the amending Act

113 Application of amendments — right of entry

The amendments of subsection 510(1) made by Part 10 of Schedule 1 to the amending Act apply in relation to each entry permit held by a permit holder whether issued before, on or after the commencement of that Part.

Division 8 — Amendments made by Part 11 of Schedule 1 to the amending Act

114 Penalties for contravention of civil remedy provisions

Changes to amounts of pecuniary penalties and serious contraventions

(1) The amendments of Part 4-1 made by Division 1 of Part 11 of Schedule 1 to the amending Act apply in relation to conduct engaged in after the commencement of that Division.

(2) For the purposes of section 557, conduct engaged in before that commencement cannot constitute the same course of conduct as conduct engaged in after that commencement.

Changes relating to underpayments

(3) The amendments of Part 4-1 made by Division 3 of Part 11 of Schedule 1 to the amending Act apply in relation to conduct engaged in after the commencement of that Division.

(4) For the purposes of section 557, conduct engaged in before that commencement cannot constitute the same course of conduct as conduct engaged in after that commencement.

Part 17 — Amendments made by Part 15 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023

Division 1 — Definitions

115 Definitions

In this Part:

amended Act means this Act as amended by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023.

amending Act means the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023.

commencement means the commencement of item 237 of Part 15 of Schedule 1 to the amending Act.

old Act means this Act as in force immediately before commencement.

Division 2 — Transitional provisions

116 Relationships in existence as at commencement or entered into on or after commencement

(1) Subject to this Schedule, section 15AA of the amended Act applies on and after commencement to the following:

(a) a relationship between an individual and a person entered into before commencement that is in existence as at commencement;

(b) a relationship between an individual and a person entered into on or after commencement.

(2) Despite section 40A, section 7 of the Acts Interpretation Act 1901, as in force from time to time, applies in relation to the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act.

Note: Section 7 of the Acts Interpretation Act 1901 provides for the effect of amendment and repeal of provisions of Acts, including in relation to rights, liabilities, penalties and forfeitures etc. accrued or incurred before the repeal.

117 References to employees etc. in fair work instruments made before commencement

(1) This clause applies to a fair work instrument that:

(a) was made before commencement; and

(b) is in operation on or after commencement.

(2) A reference in the fair work instrument to an employee or an employer is taken, on and after commencement, to include a reference to an employee or an employer, as the case requires, within the meaning of section 15AA of the amended Act.

118 Entitlements determined by reference to length of a period of employment etc.

(1) This clause applies if:

(a) immediately before commencement, an individual was not an employee of a person within the ordinary meaning of that expression; and

(b) because of the operation of section 15AA of the amended Act, on commencement, the individual becomes an employee of the person, within the ordinary meaning of that expression, in respect of that relationship.

(2) For the purposes of determining whether the individual has a right or entitlement under the amended Act or under a fair work instrument in respect of the employment of the individual, being a right or entitlement calculated by reference to:

(a) the individual's length of service (however described) as an employee; or

(b) a minimum period of employment (however described) of the individual;

the nature of the relationship between the individual and the person in respect of a period or periods before commencement is to be ascertained in accordance with the old Act.

119 Old Act applies to proceedings on foot as at commencement

(1) Despite the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act, the old Act continues to apply, on and after commencement, as if that amendment had not been made, in relation to the following:

(a) an application made, or proceedings on foot, as at commencement, other than an application or proceedings prescribed by the regulations;

(b) an application for review of, or an appeal relating to, an application or proceedings referred to in paragraph (a) (whether the application for review was made, or the appeal proceedings were brought, before, on or after commencement).

(2) For the purposes of paragraph (1)(a), an application or proceedings are on foot until all rights of review and appeal in relation to the application or proceedings have expired or have been exhausted.

120 FWC power to deal with uncertainties or difficulties arising from the operation of section 15AA of the amended Act

(1) The FWC may make a determination varying a fair work instrument in order to resolve an uncertainty or difficulty relating to the operation or effect of the fair work instrument, being an uncertainty or difficulty arising as a result of, or in connection with, the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act.

(2) The FWC may make a determination under subclause (1) varying a modern award:

(a) on its own initiative; or

(b) on application by an employer, employee, organisation or outworker entity covered by the modern award; or

(c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees covered by the modern award; or

(d) if the modern award includes outworker terms—on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker terms relate.

(3) The FWC may make a determination under subclause (1) varying an enterprise agreement or a workplace determination:

(a) on its own initiative; or

(b) on application by any of the following:

(i) one or more of the employers covered by the enterprise agreement or workplace determination;

(ii) an employee covered by the enterprise agreement or workplace determination;

(iii) an employee organisation covered by the enterprise agreement or workplace determination.

(4) The FWC may make a determination under subclause (1) varying an FWC order:

(a) on its own initiative; or

(b) on application:

(i) by a person affected by the order; or

(ii) if the FWC order is of a kind prescribed by the regulations—by a person prescribed by the regulations in relation to that kind of order.

(5) A variation of a fair work instrument under this clause operates from the day specified in the determination, which may be a day before the determination was made.

(6) The regulations may provide as follows:

(a) that this clause applies, or does not apply, to a specified fair work instrument or a specified class of fair work instrument;

(b) that this clause applies, or does not apply, to a specified uncertainty or difficulty, or a specified class of uncertainty or difficulty.

Division 3 — Regulations about transitional matters

121 General power for regulations to deal with transitional etc. matters

(1) The regulations may make provisions of a transitional, application or saving nature in relation to the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act.

(2) The regulations may make provisions of a transitional, application or saving nature in relation to the following:

(a) a person becoming an employer because of the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act;

(b) an individual becoming an employee because of the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act.

122 Other general provisions about regulations

(1) This clause applies to regulations made for the purposes of this Part.

(2) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to the regulations.

(3) If:

(a) regulations are expressed to commence from a date (the registration date) before the regulations are registered under the Legislation Act 2003; and

(b) a person engaged in conduct before the registration date; and

(c) but for the retrospective effect of the regulations, the conduct would not have contravened a provision of this Act;

then a court must not convict the person of an offence, or order the person to pay a pecuniary penalty, in relation to the conduct on the grounds that it contravened a provision of this Act.

Part 18 — Amendments made by Part 16 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023

Division 1 — Definitions

123 Definitions

In this Part:

amended Act means this Act as amended by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023.

amending Act means the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023.

commencement means the commencement of item 238 of Part 16 of Schedule 1 to the amending Act.

old Act means this Act as in force immediately before commencement.

Division 2 — Transitional provisions

124 Unfair deactivation and unfair termination

(1) Part 3A-3 (unfair deactivation or unfair termination of regulated workers) applies to a deactivation or termination that occurs after commencement.

(2) For the purposes of determining under paragraph 536LD(c) whether an employee-like worker has been performing work for a period of at least 6 months, a period or periods before commencement are not to be counted.

(3) For the purposes of determining under paragraph 536LE(c) whether a regulated road transport contractor has been performing work for a period of at least 12 months, a period or periods before commencement are not to be counted.

125 New applications relating to unfair contracts

An application in relation to a services contract may be made under section 536ND only if the contract was entered into on or after the commencement of this item.

126 Services contracts entered into before commencement

(1) This section applies to a services contract entered into before commencement.

(2) Despite the amendments of the Independent Contractors Act 2006 made by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023, the Independent Contractors Act 2006 continues to apply to the services contract after commencement of this item as if those amendments had not been made.

(4) That the title of the Bill be omitted and substituted with the following:

A Bill for an Act to amend the law relating to workplace relations, work health and safety, workers' compensation and rehabilitation, certain independent contractors, the Asbestos Safety and Eradication Agency and registered organisations, and for related purposes

(5) That clause 2 of the Bill be omitted and substituted with the following:

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

(6) That the following be added at the end of Schedule 1 to the Bill:

Part 18 — Application and transitional provisions

Fair Work Act 2009

308 In the appropriate position in Schedule 1

Insert:

Part 15 — Amendments made by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023

Division 1 — Definitions

91 Definitions

In this Part:

amended Act means this Act as amended by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023.

amending Act means the Fair Work Legislation Amendment (Closing Loopholes) Act 2023.

Division 2 — Amendments made by Part 2 of Schedule 1 to the amending Act

92 Application — section 121

Despite the amendment made by item 28 of Part 2 of Schedule 1 to the amending Act, section 121, as in force immediately before the commencement of that item, continues to apply in relation to the termination of an employee's employment if any of the following occurred before that commencement:

(a) the termination of the employee;

(b) any other termination covered by that section as amended that caused the employer to become a small business employer.

Division 3 — Amendments made by Part 6 of Schedule 1 to the amending Act

93 Application of amendments — regulated labour hire arrangement orders

Application of requirement to pay protected rate of pay

(1) Section 306F of the amended Act (protected rate of pay payable to employees if a regulated labour hire arrangement order is in force) applies on and after 1 November 2024 regardless of whether any agreement resulting in the performance of work by a regulated employee is entered into before, on or after that day.

Anti-avoidance provisions apply retrospectively in relation to certain conduct and schemes

(2) Division 4 of Part 2-7A of the amended Act (anti-avoidance) applies, on and after the introduction day, in relation to:

(a) conduct engaged in; or

(b) a scheme that is entered into, begun to be carried out or carried out;

on or after the introduction day.

(3) In this section:

introduction day means the day on which the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 was introduced into the Parliament.

Division 4 — Amendments made by Part 7 of Schedule 1 to the amending Act

94 Application of section 149E of amended Act

(1) Section 149E (delegates' rights terms) of the amended Act applies in relation to a modern award that is in operation on or after 1 July 2024, whether or not the award was made before that day.

(2) However, a modern award is not invalid on or after 1 July 2024 only because it does not include a delegates' rights term.

95 FWC to vary certain modern awards

(1) This clause applies in relation to a modern award if the award:

(a) is made before 1 July 2024; and

(b) is to be in operation on that day.

(2) The FWC must, by 30 June 2024, make a determination varying the modern award to include a delegates' rights term.

(3) A determination made under subclause (2) comes into operation on (and takes effect from) 1 July 2024.

(4) Section 168 applies to a determination made under subclause (2) as if it were a determination made under Part 2-3.

96 Application of section 205A of amended Act

(1) Section 205A (enterprise agreements to include delegates' rights terms etc.) of the amended Act does not apply in relation to an enterprise agreement if:

(a) before 1 July 2024, the employer concerned asks the employees to approve the agreement by voting for it; and

(b) by that vote, the employees approve the agreement; and

(c) the FWC approves the agreement.

(2) In deciding, after 1 July 2024, whether to approve the agreement mentioned in subclause (1) (in that form), the FWC must disregard section 205A.

97 Application of subsections 273(6) and (7) of amended Act

(1) Subsections 273(6) and (7) (delegates' rights terms) of the amended Act apply in relation to a workplace determination made on or after 1 July 2024.

(2) However, a workplace determination is not invalid on or after 1 July 2024 only because it does not include a delegates' rights term.

Division 5 — Amendments made by Part 14 of Schedule 1 to the amending Act

98 Offence relating to failure to pay certain amounts as required

Subsection 327A(1) of the amended Act applies in relation to conduct that occurs after the commencement of Part 14 of Schedule 1 to the amending Act, including conduct that occurs after that commencement that is part of a course of conduct that began before that commencement.

Division 6 — Amendments made by Part 14A of Schedule 1 to the amending Act

99 Application of amendments

(1) The amendment of subsection 409(6A) of this Act made by Part 14A of Schedule 1 to the amending Act applies in relation to industrial action to the extent that the industrial action occurs, or is to occur, on or after the commencement of that Part.

(2) However, the amendment does not apply in relation to doing any of the following before that commencement in relation to industrial action, even if the industrial action occurs, or was to occur, on or after that commencement:

(a) organising the industrial action;

(b) threatening to engage in the industrial action;

(c) threatening to organise the industrial action;

(d) engaging in any other conduct in relation to the industrial action.

(3) For the purposes of subsection 409(6A) of this Act, as amended by Part 14A of Schedule 1 to the amending Act, it does not matter whether a contravention of an order made under section 448A of this Act occurred before, on or after the commencement of that Part.

Sue Lines (President) Share this | Link to this | Hansard source

Senators, the procedural motion just agreed to requires that the substantive motion be put without amendment or debate, so I now put the question that the motion be agreed to.