Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023

The majority voted in favour of the remaining amendments on sheets ZB259, ZC235 and ZC272, and the amendments on sheets ZB287, ZC237 and TD103, which means they passed.

What do these amendments do?

According to the relevant explanatory memorandum:

These amendments to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 (Bill) would:

• Insert a further note to new subsection 66AAC(4), to direct readers to relevant provisions in the Public Service Act 1999 and highlight the interaction between the two pieces of legislation.

• Change commencement of Division 2 of Part 7 (workplace delegates rights for regulated workers), Part 15 (definition of employment) and Part 16 (regulated workers) to 6 months after Royal Assent or earlier by proclamation instead of 1 July 2024.

• Narrow the scope of the proposed competition authorisation in the new collective agreement framework, so that conduct done in accordance with terms in a collective agreement that are of no effect, would not be exempt from Part IV of the Competition and Consumer Act 2010 (Cth) and the Competition Code.

• Provide that if negotiating entities for a proposed collective agreement are unable to resolve a dispute about the making of the agreement, either negotiating entity may apply to the FWC for the Commission to deal with the dispute.

• Insert a new public interest test as a prerequisite for the FWC’s registration of a proposed collective agreement or variation of a collective agreement.

• Remove the contractual chain regulation-making power in the Bill and insert a comprehensive framework that would empower the FWC to make contractual chain orders and guidelines in relation to contractual chains in the road transport industry.

• Amend the road transport objective to provide that in performing a function or exercising a power, the Expert Panel for the road transport industry would be required to:

• consider the need for an appropriate safety net of minimum standards for regulated road transport workers and employees in the road transport industry; and

• have regard to the need for minimum standards in road transport contractual chains.

• Enable the Minister to make a declaration deferring or suspending all or part of a minimum standards order (MSO) or road transport contractual chain order (RTCCO) and enable the FWC to make a determination deferring or suspending all or part of a road transport minimum standards order (RTMSO) or RTCCO, while the FWC considers whether to vary/revoke all or part of the order.

• Expand the scope of the definition of ‘digital labour platform’ to also apply where parties other than the platform operator process relevant payments.

• Provide that employee-like workers and digital labour platform operators cannot be covered by both federal and state systems once an employee-like minimum standards order (ELMSO) covers them.

• Remove provisions which would have permitted variations of such RTMSOs and ELMSOs to operate retrospectively in limited circumstances.

• Prevent people from pursuing multiple unfair deactivation or unfair termination remedies under different laws.

• Make minor and technical changes to Parts 16 and 18.