A raft of changes have been introduced into the operation of employment law over the Christmas/New Year Period. This week the Fair Work Commission has both urged employers to understand these changes, and released updated information and guidance to assist with this understanding.
The New Year ushered in a raft of new laws (https://acapmag.com.au/2024/01/new-laws-roll-in-with-the-new-year/) that all employers and industry operators need to be familiar with. On the employment side Fair Work is sounding a clear reminder to all employers to understand the changes now, or face the very serious consequences, including criminal offences and jail time.
Fair Work Ombudsman Anna Booth said there were important changes to the Fair Work Act that have been made or will be made by the laws, including the creation of a criminal offence for intentional underpayments.
“We urge workplace participants to be across the changes which create new or different rights or responsibilities,” Ms Booth said.
“There can be significant penalties where the laws are not followed – including jail time for the new criminal offence – but we want employers to get it right in the first place and are here to help with free information and advice to ensure they do.”
This includes the criminalisation of wage theft which provides for companies prosecuted to face penalties three-times the amount of the underpayment, if a court can determine it, or $7.825 million, whichever is greater. If the court can’t determine the underpayment, the maximum penalty is $7.825 million.
These new laws also provide for individuals to be imprisoned for up to 10 years; be fined either three-times the amount of the underpayment, if the court can determine it, or up to $1.565 million, whichever is greater; or be both fined and imprisoned.
“There is protection within the framework of the new laws for honest mistakes, however, ignorance is not a defence, all employers must be doing due diligence to ensure that their systems are compliant in order to use the honest mistake defence”, explains ACAPMAs Elisha Radwanowski.
Government Fact Sheets on the changes made so far
To assist employers in understanding the changes that have been made so far in this process, the Department of Employment and Workplace Relations has published a series of fact sheets.
Fact sheets include:
- Compliance and enforcement: Criminalising wage theft
- Regulated labour hire arrangement orders (Closing the labour hire loophole)
- Enhancing delegates’ rights
- Provide stronger protections against discrimination, adverse action and harassment
- Addressing anomalous consequences of the small business redundancy exemption in insolvency contexts
- Conciliation conference orders
- Entry to assist Health and Safety Representatives
- Amendments to the Asbestos Safety and Eradication Agency Act 2013
- Amendments to the Safety Rehabilitation and Compensation Act 1988
- Industrial manslaughter and other work, health and safety reforms
There is also a fact sheet summarising measures of particular interest to small business.
Government Fact Sheets on the changes that are not yet agreed to
In order to facilitate the passage of some of these measures several other areas were carved out and are still under discussion. The Department has also produced guidance on these areas. It must be remembered that these areas are NOT YET LAW and the content and operation of these areas may change through the Parliamentary process
Fact sheets PROPOSED changes include:
- Extend the powers of the Fair Work Commission to set minimum standards for ‘employee-like’ workers
- Allow the Fair Work Commission to set minimum standards to ensure the road transport industry is safe, sustainable and viable
- Give workers the right to challenge unfair contractual terms
- Stand up for casual workers
- Compliance and enforcement: Civil penalties and sham contracting
- Meaning of ’employee’ and ’employer’ in the Fair Work Act 2009
- Enabling multiple franchisees to access the single-enterprise stream
- Strengthening rights of entry to investigate underpayments
- Fair Work Commission preparing enterprise agreement model terms
- Transitioning from multi-enterprise agreements
- Repeal demerger from registered organisations amalgamation provisions
- Workplace determinations
More from ACAPMA on the changes
For more on the Closing Loopholes 1 (changes made) and Closing Loopholes 2 (changes not yet agreed to) see; https://acapmag.com.au/2023/12/maximum-10-year-jail-term-for-wage-theft/
For more on the Labour Hire changes and how they impact on the industry see; https://acapmag.com.au/2023/12/new-employment-laws-q-a-labour-hire/
For more on Deductions from Wages changes and how they impact the industry see; https://acapmag.com.au/2023/10/its-coming-out-of-your-pay/
Here to Help
This article is general in nature and covers things to consider, implement and watch out for in your business. It is provided as general advice and you should seek further advice on your situation. ACAPMA Employment Professionals are available to assist ACAPMA members via employment@acapma.com.au. ACAPMA membership is affordable at only $860inc GST per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts. Visit: https://acapma.com.au/membership/ to learn more or to apply for ACAPMA membership.
Elisha Radwanowski BCom(HRM & IR)
Executive Manager for Employment and Compliance
ACAPMA
