Award Interpretation Details in the Proposed Act

FAIR WORK LEGISLATION AMENDMENT
(CLOSING LOOPHOLES) BILL 2023

Extract of the Award Interpretation details from the Act

The Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Bill) would amend the Fair Work Act 2009 (FW Act) and related legislation to improve the workplace relations framework by:

Improving job security by replacing the existing definition of ‘casual employee’ with a fair and objective definition and by introducing a new employee choice pathway for eligible employees to change to permanent employment if they wish to do so.
Addressing anomalous consequences of the small business redundancy exemption in insolvency contexts by providing an exception to its operation when a larger business downsizes to become a smaller business employer due to insolvency.
Making targeted amendments to the bargaining framework by:
- Enabling multiple franchisees to access the single-enterprise stream;
- Allowing supported bargaining and single interest employer agreements to be replaced by single-enterprise agreements at any time if certain conditions are met;
- Authorising the Fair Work Commission (FWC) to make and vary enterprise agreement model terms for flexibility, consultation and dispute resolution in place of the existing provisions according to which these terms are made by regulation.
Protecting bargained wages in enterprise agreements from being undercut by the use of labour hire workers who are paid less than those minimum rates.
Supporting workplace delegates by providing a framework for delegates’ rights and including protections for workplace delegates when seeking to exercise those rights.
Establishing a new protected attribute in the FW Act to improve workplace protections against discrimination for employees who have been, or continue to be, subjected to family and domestic violence.
Changing the defence to misrepresenting employment as an independent contractor arrangement, known as ‘sham contracting’ from a test of ‘recklessness’ to one of ‘reasonableness’.
Enabling a registered organisation to obtain an exemption certificate from the FWC to waive the 24 hours’ notice requirement for entry if they reasonably suspect a member of their organisation has been or is being underpaid.
Empowering the FWC to take action in relation to the future issue of such exemption certificates if those rights are misused (for example, by imposing conditions, or banning their issue for a specified period).
Increasing maximum penalties for underpayments by amending the civil penalties and serious civil contravention frameworks, and adjusting the threshold for what will constitute a serious contravention.
Clarifying that Fair Work Ombudsman (FWO) compliance notices can require an employer to calculate the amount of an underpayment that is owed to an employee, and that a court can order the recipient of the notice to comply with its terms.
Repealing amendments made by the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act 2020, relating to the withdrawal of parts of amalgamated organisations (de-merger).
Introducing a new criminal offence for wage theft, which applies to intentional conduct.
Inserting into the FW Act an interpretive principle for determining the ordinary meanings of ‘employee’ and ‘employer’ for the purposes of the FW Act. This would enhance fairness by requiring consideration of the real substance, practical reality and true nature of the relationship by reference to the totality of the relationship between the parties.
Allowing the FWC to set fair minimum standards for ‘employee-like’ workers, including in the gig economy.
Allowing the FWC to set fair minimum standards to ensure the Road Transport Industry is safe, sustainable and viable.
Allowing the FWC to deal with disputes about unfair terms in services contracts to which an independent contractor is a party.
Repealing a sunsetted clause regarding applications to vary modern awards if already being dealt with in a four yearly review.
Extending the functions of the Asbestos Safety and Eradication Agency to address silica related diseases.
Introducing a presumption according to which first responders covered by the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) who sustain post-traumatic stress disorder (PTSD) will not have to prove their employment significantly contributed to their PTSD for the purpose of their workers’ compensation claim.
Introducing a new offence of industrial manslaughter in the Work Health and Safety Act 2011, reflecting recommendations 23b of the Review of the Model Work Health and Safety Laws – Final Report (Boland Review) and 13 of the They Never Came Home Report (Senate Inquiry), and significantly increasing the penalties for the existing Category 1 offence.
Aligning the WHS Act offence framework with recent changes to the Model WHS Law by indexing the penalties for existing offences to the Consumer Price Index.

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Overview of the Bill

The Bill would amend the Fair Work Act 2009 (FW Act) and related legislation to close loopholes to protect Australian workers and strengthen the work health and safety (WHS) framework.

Casual employment

Part 1 of Schedule 1 to the Bill would amend existing section 15A of the FW Act to implement an objective definition of ‘casual employee’ to determine when an employee can be classified as a casual employee.
The new definition would be characterised by the presence or absence of a firm advance commitment to continuing and indefinite work, to be assessed against various factors that indicate the real substance, practical reality and true nature of the employment relationship. Assessment of the true nature of the employment relationship reflects the common law approach to defining casual employment before the High Court of Australia’s decision in WorkPac Pty Ltd v Rossato [2021] HCA 23 (Rossato).
The factors would include whether there is a mutual understanding or expectation between the employer and employee, whether the employee can elect to accept or reject work, the future availability of continuing work, whether there are other employees performing the same work who are part-time or full-time employees, or whether there is a regular pattern of work.
The Bill would also amend the National Employment Standards (NES) at Part 2-2 of the FW Act to provide casual employees with two pathways to change their employment status – by exercising a choice via a new notification procedure, or through the existing casual conversion procedure. The amendments would also establish a robust new framework for dealing with disputes about employment status.
The Bill would respond to findings of the Review of the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) (Statutory Review) by:

strengthening the existing dispute resolution framework in the FW Act, including by allowing the Fair Work Commission (FWC) to determine, by mandatory arbitration, whether an employer had reasonable grounds to refuse to make an offer or decline a request for casual conversion;
introducing new civil remedy provisions prohibiting employers from misrepresenting employment as casual employment, making misrepresentations to engage an employee as a casual employee, and dismissing an employee to re-engage them as a casual employee in certain circumstances; and
requiring employers to provide the Casual Employment Information Statement to casual employees at the start of their employment and at 12 months.

Casual employment forms a significant proportion of the Australian labour market, and suits the needs of many employees and employers.
Nonetheless, there are identified issues with casual employment. The Senate Committee on Job Security Report noted that the common characteristics of casual employment support a proposition that casual workers are less secure[1] and although casual employees are generally entitled to receive a loading to compensate for a lack of paid leave entitlements, casual employees generally earn less on average than permanent employees, both in terms of weekly and hourly earnings.[2]
The amendments made by this Part of the Bill would provide casual workers with a greater ability to make a choice about their employment status, by providing a pathway to move to permanent employment if they wish. Under the amendments, an employee would have the opportunity to move from casual employment where they are in fact working like a permanent employee. The choice to change status would rest with the employee; no employee would be forced to change employment status. Rather, the amendments would strengthen the pathway to permanent work for employees who choose it.

Small business redundancy exemption

Part 2 of Schedule 1 would address the anomalous consequences of the small business redundancy exemption in insolvency contexts by providing an exception to its operation when a larger business downsizes to become a smaller business employer due to insolvency.

Enabling multiple franchisees to access the single-enterprise stream

Part 3 of Schedule 1 would allow multiple franchisees of the same franchisor or related bodies corporate of the same franchisor or any combination to make a single-enterprise agreement, while retaining the ability to make a multiple-enterprise agreement.

Transitioning from multi-enterprise agreements

Part 4 of Schedule 1 would introduce provisions facilitating the transition from a single interest employer agreement or supported bargaining agreement to a single-enterprise agreement.
Part 4 would provide that where a single-enterprise agreement is made and an existing single interest employer agreement or supported bargaining agreement (whether or not nominally expired) applies to at least one of the employees covered by the single-enterprise agreement, the better off overall test (BOOT) would be modified. Any employee to whom a single interest employer agreement or supported bargaining agreement applies must be better off under the single-enterprise agreement than the supported bargaining agreement or single interest employer agreement (as the case may be) that applies at test time.

Model terms

Part 5 of Schedule 1 would change the process for determining the model flexibility, consultation and dispute resolution terms for enterprise agreements and the model term for settling disputes arising under a copied State instrument. Currently, these model terms are prescribed in the Fair Work Regulations 2009 (FW Regulations). The proposed amendments would replace the existing requirements with requirements that the FWC, as Australia’s expert and independent workplace relations tribunal, determine the model terms.

Closing the labour hire loophole

Part 6 of Schedule 1 to the Bill would insert new Part 2-7A into the FW Act, which would allow employees and organisations entitled to represent their industrial interests to apply to the FWC for a regulated labour hire arrangement order. The FWC would not be required to make the order if satisfied that it was not fair and reasonable, having regard to submissions from affected businesses and employees.
If the FWC made such an order, labour hire providers would generally be required to pay their employees no less than what they would be entitled to be paid under the host business’ enterprise agreement (or other employment instrument) if the employee were directly employed by the host. Host businesses would also be required to provide certain information to labour hire providers on request to assist them in meeting their payment obligations.
Certain exemptions would be built into the framework, including where a labour hire employee is engaged for a short-term period or where a training arrangement applies to the employee. The provisions also will not apply where the host is a small business employer as defined in the FW Act.
The provisions would be supported by an anti-avoidance framework to prevent businesses from adopting certain practices with the intention of avoiding obligations under new Part 2-7A.
The FWC would be able to resolve disputes about the operation of Part 2-7A, including by mandatory arbitration, and may determine an alternative protected rate of pay for a labour hire employee where it would be unreasonable for an employer to pay the employee the protected rate under Part 2-7A.

Workplace delegates’ rights

Part 7 of Schedule 1 would insert statutory workplace rights for workplace delegates to support their role in representing workers and a general protection for workplace delegates to facilitate the exercise of these rights. It would also provide for modern awards and enterprise agreements to detail the specific requirements for various industries, occupations and workplaces.

Strengthening protections against discrimination

Part 8 of Schedule 1 would amend the FW Act to protect employees who have been, or continue to be, subjected to family and domestic violence (FDV) from discrimination within the workplace by making it a protected attribute in the FW Act. The amendments would prohibit a national system employer from taking adverse action against an employee or prospective employee on that basis. The amendments would also prohibit employers who are not covered by Part 3-1 of the FW Act from terminating an employee’s employment on the basis of subjection to FDV.
Further, the amendments would prohibit modern awards and enterprise agreements from including terms that discriminate against employees because of, or for reasons including, their subjection to FDV. The amendments would also require the FWC, when performing functions or exercising its powers under the FW Act in relation to a matter, to take into account the need to respect and value the diversity of the workforce by helping to prevent and eliminate discrimination on the basis of subjection to FDV.

Sham arrangements

Part 9 of Schedule 1 would change the defence to misrepresenting employment as an independent contracting arrangement, known as ‘sham contracting’, in subsection 357(2) of the FW Act from a test of ‘recklessness’ to one of ‘reasonableness’. The new test would provide that an employer would not contravene the prohibition on sham contracting in subsection 357(1) of the FW Act if the employer reasonably believed that the contract was a contract for services. The burden of proof would rest with the party who made the representation, consistently with the existing defence.

Exemption certificates for suspected underpayment

Part 10 of Schedule 1 would enable an organisation to obtain an exemption certificate from the FWC to waive the minimum 24 hours’ notice requirement for entry if they reasonably suspect a member of their organisation has been or is being underpaid. It would also protect permit holders who are exercising rights in accordance with Part 3-4 from improper conduct by others and empower the FWC to impose conditions on a permit, as an alternative to revoking or suspending an entry permit in the circumstances set out in section 510 of the FW Act.

Penalties for civil remedy provisions

Part 11 of Schedule 1 would increase the maximum civil pecuniary penalties that apply to contraventions (including serious contraventions) of wage exploitation-related provisions by five times (and 10 times for non-compliance with a compliance notice). It would also enable the maximum penalty for a contravention to be determined by reference to three times the value of the underpayment (if able to be determined) in certain circumstances. It would also amend the scheme for ‘serious contraventions’ in section 557A so that it applies to knowing and reckless contraventions of the relevant provisions, rather than to knowing and systematic contraventions.

Compliance notice measures

Part 12 of Schedule 1 would clarify that a compliance notice issued to a person may require the person to calculate and pay the amount of any underpayment; and a relevant court may make an order requiring compliance with a notice (other than an infringement notice) issued by a Fair Work Inspector or the FWO.

Withdrawal from amalgamations

Part 13 of Schedule 1 would repeal amendments made by the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act 2020, relating to the withdrawal of parts of amalgamated organisations (de-merger).

Wage theft

Part 14 of Schedule 1 would introduce a new criminal offence for wage theft (including ‘related offence provisions’ that deal with ancillary liability), which applies to intentional conduct. It would provide for ‘safe harbour’ by way of compliance with a voluntary small business wage compliance code or a cooperation agreement if the relevant requirements are met. It would also require the FWO to publish a compliance and enforcement policy, including guidelines relating to the circumstances in which the FWO will or will not accept or consider undertakings.
It would enable the Commonwealth Crown (but not other Australian Governments) to be liable to be prosecuted for the new criminal offence for wage theft or a ‘related offence provision’. It would also clarify that the Crown in each of its capacities (that is, all Australian Governments) and to the extent the Commonwealth’s legislative power permits, is liable to be the subject of proceedings for a contravention of a civil remedy provision (this reflects the status quo.) It would also include provisions of a machinery nature setting out how liability may attach in these circumstances.

Definition of employment

Part 15 of Schedule 1 would insert a new section 15AA into Part 1-2 of the FW Act. New section 15AA would require that the ordinary meanings of ‘employee’ and ‘employer’ be determined by reference to the real substance, practical reality and true nature of the relationship between the parties. This would require the totality of the relationship between the parties, including not only the terms of the contract governing the relationship but also the manner of performance of the contract, to be considered in characterising a relationship as one of employment or one of principal and contractor.
The amendments respond to the High Court’s decisions in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (Jamsek). These decisions require that where the parties have comprehensively committed the terms of their relationship to a written contract the validity of which is not in dispute, the characterisation of that relationship proceeds by reference to the rights and obligations of the parties under the contract. Except in limited circumstances, a wide-ranging review of the parties’ subsequent conduct is inappropriate. Prior to Personnel Contracting and Jamsek, it was broadly believed that the correct approach was to apply the ‘multi-factorial’ test.
The intention of the amendments is to facilitate a return to the ‘multi-factorial’ test previously applied by courts and tribunals in characterising a relationship as one of employment or of principal and contractor.

Provisions relating to regulated workers

Part 16 of Schedule 1 would implement amendments to the FW Act and associated legislation to ensure that certain independent contractors are entitled to greater workplace protections than they are currently. The majority of the amendments are targeted at independent contractors who are either:

employee-like workers performing digital platform work; or
engaged in the road transport industry.

The amendments would:

provide a framework for the FWC to exercise functions and powers that relate to the road transport industry;
insert a new jurisdiction enabling the FWC to set minimum standards orders and minimum standards guidelines in relation to employee-like workers performing digital platform work and regulated road transport industry contractors;
enable digital labour platform operators and road transport businesses to make consent-based collective agreements with registered employee organisations;
empower the FWC to deal with disputes over an employee-like worker’s unfair deactivation from a digital labour platform, or the unfair termination of a road transport contractor’s services contract by a road transport business;
enable independent contractors earning below a specified contractor high income threshold to dispute unfair contract terms in the FWC; and
ensure the Independent Contractors Act 2006 (IC Act) continues to apply in respect of independent contractors performing work that is remunerated at an amount that exceeds the new contractor high income threshold.

Amendment of the Asbestos Safety and Eradication Agency Act 2013

Schedule 2 to the Bill would amend the Asbestos Safety and Eradication Agency Act 2013 (ASEA Act) to broaden ASEA’s functions which are currently confined to asbestos.
The increase in silicosis and other silica-related diseases is deeply concerning and has raised the need for urgent coordinated national action to reduce rates of silica-related diseases and to support affected workers and their families. This Bill would expand the functions of the well-respected Asbestos Safety and Eradication Agency (ASEA) to include coordinating action on silica safety and silica-related diseases. This would include developing, promoting and reporting on a Silica National Strategic Plan which will coordinate and track the progress of jurisdictions against nationally agreed targets. ASEA would be renamed the Asbestos and Silica Safety and Eradication Agency (Agency) to reflect these changes. The renamed Agency’s functions will include responsibility for coordination, awareness raising, research, reporting and providing advice to the government on silica.
Establishing and appropriately resourcing the renamed Agency as a national coordination mechanism for action on silica-related diseases acts on the recommendations of the National Dust Disease Taskforce (NDDT). The NDDT was established in 2019, and in June 2021 submitted a final report to the then Minister for Health and Aged Care recommending a national approach to the prevention, early identification, control and management of silicosis and other occupational dust diseases in Australia. An All of Governments’ response to the NDDT’s Final Report was published in April 2022.
The Bill would expand the membership of the current Asbestos Safety and Eradication Council (ASEC) to include appropriate representation from employee and employer representatives and an expert in asbestos or silica-related matters. ASEC would be renamed the Asbestos and Silica Safety and Eradication Council (Council) to reflect these changes. Eligibility would also be broadened to allow for persons with lived experience to be appointed to the Council.

Amendment of the Safety, Rehabilitation and Compensation Act 1988

Schedule 3 to the Bill implements presumptive liability provisions for first responders covered by the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) who suffer from PTSD. The proposed amendments are consistent with the recommendation of the Senate Education and Employment References Committee report, The people behind 000: mental health of our first responders and reflect epidemiologist Professor Tim Driscoll’s advice in his December 2021 review of Safe Work Australia’s Deemed Diseases List which recommended that PTSD be listed as a deemed disease for police officers, ambulance officers including paramedics, and firefighters.
Schedule 3 would amend the SRC Act to provide a rebuttable presumption that PTSD suffered by specified first responders was contributed to, to a significant degree, by employment. The presumption will apply to employees of the Australian Federal Police, firefighters, ambulance officers (including paramedics), emergency services communications operators and other persons engaged under the Australian Capital Territory’s Emergencies Act 2004.

Amendment of the Work Health and Safety Act 2011

Schedule 4 to the Bill would strengthen the offences and penalties framework in the Work Health and Safety Act 2011 (WHS Act). A new offence of industrial manslaughter would be introduced. This would align Commonwealth WHS laws with the model Act which was recently amended to provide for industrial manslaughter within the model framework. The model Act does not prescribe the exact provisions of the model offence to enable each jurisdiction to implement (or maintain) an offence tailored to the criminal law framework of the jurisdiction. However, the model Act provides for an industrial manslaughter offence via a jurisdictional note and accompanying model penalties for the offence. The offence in this Bill reflects recommendations 23b of the Review of the Model Work Health and Safety Laws – Final Report (Boland Review) and 13 of the They Never Came Home Report (Senate Inquiry).
The existing Category 1 offence and State and Territory general manslaughter offences may also apply when a worker or other person is killed at a workplace. A specific industrial manslaughter offence responds to community concern that the WHS framework requires stronger penalties for the most egregious breaches of WHS duties that result in workplace fatalities.
Schedule 4 would also:

repeal and replace provisions dealing with criminal liability for bodies corporate, the Commonwealth, and public authorities. These amendments reflect recent changes to the model Act, with appropriate modifications and additional provisions where necessary;
clarify that the Category 1 offence applies to officers of persons conducting a business or undertaking (PCBUs);
significantly increase Category 1 penalties; and
increase all penalties in the WHS Act by 39.03 per cent (excluding Category 1 – see discussion below) and provide for future indexing (giving effect to recommendation 22 of the Boland Review).

Human rights implications

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 social security, including social insurance under Article 9 of the ICESCR;
the right to protection and assistance for families under Article 10(2) of the ICESCR;
the right to the highest attainable standard of physical and mental health under Article 12 of the ICESCR;
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;
the right to presumption of innocence and other guarantees in relation to criminal charges under Article 14 and Article 15 of the ICCPR;
the right to privacy and reputation under Article 17 of the ICCPR;
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;
the right to equality and non-discrimination under Article 2 of the ICCPR and Article 2 of the ICESCR and Article 26 of the ICCPR;
the right of women not to be discriminated against based on gender under Articles 2, 3 and 11 of the CEDAW and Article 26 of the ICCPR; and
the rights of parents and children in Articles 3 and 18 of the Convention on the Rights of the Child (CRC) and Article 5 of the CEDAW.

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.
The content of the right to equality and non-discrimination in the ICESCR and ICCPR can be informed by specific obligations in the Discrimination (Employment and Occupation) Convention 1958 (ILO Convention 111) and, when it comes into force for Australia, the Violence and Harassment Convention 2019 (ILO Convention 190).

Rights to work and rights in work

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.
The United Nations Committee on Economic Social and Cultural Rights in General Comment 18 has also stated that the right to work includes:

the right not to be deprived of work unfairly. This definition underlines the fact that respect for the individual and his dignity is expressed through the freedom of the individual regarding the choice to work, while emphasizing the importance of work for personal development as well as for social and economic inclusion.

There can also be no discrimination in access to and maintenance of employment on the grounds enumerated in Article 2(2) of the ICESCR.
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.

Casual employment

The amendments at Part 1 of Schedule 1 to the Bill would positively engage the right to the enjoyment of just and favourable working conditions by providing for a fair and objective definition of casual employee. The amended definition would require an objective assessment of the absence or presence of a firm advance commitment to continuing and indefinite work, having regard to the real substance, practical reality and true nature of the employment relationship. The amended definition would ensure employees are not able to be misclassified as casual, simply because of the label attached to their contract of employment, and ensure those employees receive the correct entitlements and working conditions, based on the true nature of their employment relationship.
This change to how casual employment is defined reflects the findings of the Statutory Review that consideration should be given to whether the definition should focus solely on the terms of the initial offer and acceptance, and ‘not on the basis of any subsequent conduct of either party’ as per existing subsection 15A(4) of the FW Act.
The amendments would also prohibit sham arrangements, whereby employers unreasonably misclassify employees as casual, dismiss a permanent employee to engage them as casual or make a misrepresentation to engage an employee as a casual. This ensures that the same protections are afforded in relation to casual employment as are provided in relation to independent contracting by the existing sham contracting provision in the FW Act, and gives effect to a finding of the Statutory Review.
These amendments would further promote rights in work by strengthening the dispute resolution framework, ensuring that employers and employees can resolve disputes that could not be resolved at the workplace level in a way that is accessible and informal.
The measures would also promote rights to work by making it fairer and easier for the FWC to deal with disputes about employee choice and casual conversion brought by employees. The current framework does not empower the FWC to deal with disputes by mandatory arbitration. Rather, parties must consent to the FWC arbitrating the matter, forcing employees to prosecute their claim in the Federal Circuit and Family Court if their employer does not consent to the arbitration. Under the new framework, employees will be able to access flexible and timely pathways to permanent employment, supporting employee choice about employment status, engaging Article 7 of the ICESCR.
The measures are aimed at achieving the legitimate objective for the purposes of international human rights law of promoting full, productive, and freely chosen employment (Article 1 of the ILO Convention 122).

Small business redundancy exemption

The amendments to the FW Act in Part 2 of Schedule 1 would promote the right to just and favourable conditions of work by addressing an anomaly which arises in the pre-existing small business redundancy exemption. This anomaly causes some employees to lose their legal entitlement to redundancy pay under the NES in the context of a business downsizing from a larger business to a smaller business due to insolvency.
The pre-existing small business redundancy exemption is a longstanding feature of the workplace relations framework under the FW Act. It encourages employment by small businesses by relieving them of NES redundancy pay obligations, which can be a significant contingent cost of employing staff. To qualify for the exemption, businesses must employ fewer than 15 staff.
An unintended anomaly arises in the operation of the small business redundancy exemption, in some insolvency contexts. When a larger employer incrementally downsizes due to insolvency, either in the period leading to liquidation or bankruptcy, or afterwards, they may fall below the 15-employee threshold and become a small business employer before the final few staff are made redundant. These final employees, who often stay on to assist in the orderly wind-up of the business, lose the entitlement they previously would have had to redundancy pay under the NES, accumulated over years of continuous service with their employer.
The amendments would provide an exception to the operation of the small business redundancy exemption in such downsizing contexts, thus preserving an employee’s redundancy pay entitlement in a range of scenarios in which the employer may have become a small business employer due to insolvency. This ensures an employee’s legal entitlement to redundancy pay is not taken away based on when they were made redundant.

Enabling multiple franchisees to access the single-enterprise stream

Part 3 of Schedule 1 engages the right to just and favourable conditions of work. It is intended that Part 3 would strengthen the ability of franchisees and their employees to bargain for just and favourable conditions of work by facilitating franchisees’ access to the single-enterprise agreement stream, thereby allowing them access to the full range of bargaining streams under the FW Act. For example:

Part 3 would enable franchisees to bargain as if they were a single enterprise, including conducting any ballot to approve an agreement as if they were a single enterprise.
Employees of franchisees would be able to obtain a majority support determination where a majority of employees who would be covered by the proposed agreement wish to bargain, without needing to establish that each employer has at least 20 employees.

By making bargaining more accessible for franchisees and their employees, the employees of franchisees have a greater ability to influence their conditions of work and to achieve just and favourable conditions of work.

Transitioning from multi-enterprise agreements

Part 4 of Schedule 1 would support rights in work by allowing employers and their employees to make a single-enterprise agreement to replace a single interest employer agreement or supported bargaining agreement prior to its nominal expiry date. This would allow employers and their employees to come to an agreement on terms and conditions of employment that are suited to their specific circumstances.
Part 4 requires a replacement agreement to be compared with the existing agreement for the purposes of the BOOT. In doing so, it promotes the right to just and favourable conditions of work by preventing conditions in single-enterprise agreements that replace a multi-enterprise agreement regressing overall, even if they are still more beneficial than those in the underlying modern award.
Safeguards would be provided by the amendments to the BOOT and by requirements for the employer to receive the consent of employee organisations or to be permitted by a voting request order before taking a replacement single-enterprise agreement to vote. These safeguards would ensure that the amendments allowing for the transition from multi-enterprise agreements to single-enterprise agreements support the rights to just and favourable conditions of work.

Model terms

The amendments in Part 5 of Schedule 1 would be compatible with and promote the right to just and favourable working conditions of work and collective bargaining. The model terms act as a safety net ensuring that compliant terms dealing with consultation, flexibility and dispute resolution are included in all enterprise agreements, and a compliant term dealing with dispute settlement is included in copied State instruments. The model terms would not override terms agreed to between the parties to an agreement or instrument where the terms meet the requirements of the FW Act, minimising any concern that the model terms would limit the capacity of employees to determine just and favourable conditions.
The amendments empowering the FWC to determine the model terms for enterprise agreements and copied State instruments require the FWC to consider ‘best practice’ workplace relations and whether all persons and bodies have had a reasonable opportunity to be heard and make submissions before making the determinations. It is intended that this would ensure the ongoing relevancy of the model terms as well as facilitating greater public consultation in the determination of the model terms.
In mandating considerations of best practice workplace relations and public participation in the process of determining model terms, individuals are empowered to participate in the determination of up-to-date and relevant terms that may form part of the terms and conditions of their employment. In doing so, the amendments support the right to just and favourable conditions of work.

Closing the labour hire loophole

Part 6 of Schedule 1 to the Bill would positively engage the right to the enjoyment of just and favourable working conditions by protecting bargained rates in enterprise agreements, or other employment instruments (see item 72 of the Bill), from being undercut by the use of labour hire. While many employers negotiate enterprise agreements with their employees that set minimum rates, the FW Act currently allows employers to engage workers through a labour hire company, who are often paid less than those agreed rates.
Several inquiries have shown that labour hire is used in a range of industries with the result of undercutting bargained rates. For example, a Senate inquiry into labour hire considered these labour hire issues in the mining, agriculture, and transport and distribution sectors. The Victorian Inquiry into the Labour Hire Industry also found that because host enterprise agreements do not generally apply to labour hire workers, this results in lower pay for some workers who work alongside directly engaged employees.
To close this loophole, the Bill would enable employees and organisations entitled to represent their industrial interests, as well as host businesses, to apply to the FWC for an order that would require labour hire employees to be paid no less than what they would receive if they were directly employed by the host business and paid in accordance with the host’s enterprise agreement or other employment instrument. These provisions would therefore enable labour hire employees to be paid at least the same as their directly employed counterparts who are performing the same work and paid under the host’s enterprise agreement. Labour hire workers who are paid higher rates than directly employed workers would not be affected.
Certain exceptions would be built into the framework, which are reasonable and proportionate. A default three-month exemption period would apply to avoid impacting labour hire arrangements for surge work or where a short-term replacement is needed. The FWC would be able to hear from parties who wish to extend or shorten that exemption period, on a case-by-case basis.
Employees on training arrangements also would not be impacted by this measure to avoid impacting training arrangements regulated by State or Territory laws.
To minimise the impact on small businesses, the measure would not apply where a host business is a small business employer within the meaning of the FW Act.

Workplace delegates’ rights

Part 7 of Schedule 1 would positively engage the right to the enjoyment of just and favourable working conditions by improving access to representation for workers, and the ability of workplace delegates to provide such representation. These provisions engage and promote operative articles of the Workers’ Representative Convention, 1971 (No. 135) of the ILO (ILO Convention 135), which Australia has ratified.
Currently, the FW Act provides limited protection to workplace delegates of an employee organisation acting within the workplace. Divisions 3 and 4 of Part 3-1 of the FW Act prohibit adverse action against employees who are officers or members of industrial associations, and allows for freedom of association and involvement in lawful industrial activities. However, these protections do not provide workplace delegates with positive rights that protect and enable them to exercise their roles in the workplace. A key function of a workplace delegate is to be a point of contact for members within the workplace and to represent the concerns of workers to the employer or business. The Bill would positively engage the right to just and favourable conditions of work by ensuring that workplace delegates have substantive rights to represent the industrial interests and concerns of their and their fellow workers.
The Bill would further support this right by requiring that the details of various supporting rights for workplace delegates be included in modern awards and enterprise agreements, which would allow them to be tailored to particular industries and enterprises. The introduction of a new general protection to enforce these rights would also positively engage rights in work, including by implementing Article 1 of the ILO Convention 135.
Introducing rights for workplace delegates would also positively impact the right to just and favourable conditions of work for all workers in a workplace. By providing explicit rights for workplace delegates, other workers in the workplace are empowered to raise workplace concerns to the workplace delegate and therefore improve their ability to cooperatively resolve any disputes that may arise in the workplace. Workers can also more effectively engage in bargaining to negotiate fair wages and conditions.

Stronger protections against discrimination

Subjection to FDV can be a significant impediment and disruption to workforce participation and an employee’s right to work. Current protections within the FW Act do not explicitly protect employees or prospective employees who are subjected to FDV against adverse action by their employer, such as being dismissed or refused employment. Part 8 of Schedule 1 would positively engage the right to work by clearly prohibiting employers from engaging in adverse action such as dismissing or refusing to employ a person because they are subjected to FDV. This Bill would also prohibit employers who are not covered by Part 3-1 of the FW Act from terminating an employee’s position of employment on the grounds of their subjection to FDV.
FDV can also be a significant impediment and disruption to favourable work conditions. Under existing arrangements in the FW Act, an employee who is subjected to FDV is not necessarily protected from employer adverse action within the workplace unless it is connected to the exercise of the employee’s workplace rights (that is, accessing paid FDV leave) or it can be argued to be protected by another attribute, such as sex. An employee’s subjection to FDV therefore could be a source of discrimination within the workplace, for example resulting in a reduction of work hours or a demotion. This Bill would promote the right to just and favourable conditions of work, and prevent discrimination in access to and maintenance of employment, by ensuring employees and prospective employees who have been, or continue to be, subjected to FDV are protected from adverse action.
Modern awards and enterprise agreements must not include terms that discriminate against employees on the basis of a range of protected attributes. By including this additional protected attribute, this Bill would ensure that employees who are subjected to FDV are also afforded equal, favourable conditions of work within the terms of modern awards and enterprise agreements. For example, if the FWC is considering whether to approve a new enterprise agreement, the amendments would require the FWC to be satisfied that the agreement does not include any terms that discriminate against employees on the basis of their subjection to FDV. The Bill would further promote the right to just and favourable conditions of work by requiring the FWC to take into account the need to prevent and eliminate discrimination on the basis of subjection to FDV when exercising its powers and performing its functions.

Sham arrangements

Sham contracting results in employees being wrongly classified as contractors, which may limit employees’ access to employment protections and entitlements, including minimum or award wages and leave entitlements. Under the existing provision in the FW Act, employers are not liable for misrepresenting employment as independent contracting if they prove that, when the representation was made, they did not know, and were not reckless as to whether, the contract was a contract of employment rather than for services.
The amendments that would be made by the Bill to section 357 of the FW Act would promote the right to just and favourable conditions of work by ensuring a more objective test applies when determining whether an employer can make out the defence to sham contracting. This new test would require employers who have misrepresented employment as independent contractors to prove they reasonably believed that the employee was an independent contractor, not merely that they were not reckless as to the employee’s correct status. This change will provide further incentives for employers to correctly classify workers from the outset, ensuring employees receive their proper entitlements.

Exemption certificates for suspected underpayment

Part 10 of Schedule 1 would positively engage the right to the enjoyment of just and favourable working conditions by improving access to representation for members, by enhancing entry rights and protections for entry permit holders exercising entry under Part 3-4 of the FW Act. Entry to investigate a suspected contravention of the FW Act, or a term of a fair work instrument, requires at least 24 hours’ notice (section 487). While provision is made to waive the notice requirement, by application to the FWC for an exemption certificate (section 519), the bar for obtaining such exemption certificates is high, so rarely used. That is, the FWC must reasonably believe that advance notice of the entry might result in the destruction, concealment or alteration of relevant evidence.
The Bill would expand the grounds for the issue of an exemption certificate under section 519, so the notice period may also be waived if the FWC is satisfied that the suspected contravention, or contraventions, involve the underpayment of wages, or other monetary entitlements, of a member of the organisation whose industrial interests the organisation is entitled to represent and who performs work on the premises. This measure would be subject to comprehensive safeguards against misuse of the entry powers.
Existing safeguards that will continue to apply, include:

the obligation for the permit holder to give a copy of the exemption certificate to the occupier of the premises (or their apparent representative), any affected employer (or their apparent representative), before or as soon as practicable after entering the premises (section 487(4));
the obligation to comply with reasonable work health and safety requirements (section 491);
prohibitions on intentionally hindering and obstructing any other person when exercising rights of entry, or otherwise acting in an improper manner (section 500);
restrictions on the unauthorised use or disclosure of information or documents (section 504); and
existing dispute resolution mechanisms in the FW Act (sections 505 and 505A).

The proposed amendments would enhance access to the workplace for permit holders to effectively investigate suspected contraventions (involving underpayments) and exercise powers under Part 3-4 including interviewing relevant persons and inspecting relevant records and documents.
In addition, the measure will protect permit holders exercising rights under Part 3-4 against people acting in an improper manner towards them.
For these reasons, the measure positively engages the right to the enjoyment of just and favourable working conditions.

Penalties for civil remedy provisions and wage theft

The FW Act currently has a civil (not criminal) framework for the enforcement of workplace rights and entitlements under the Act. This means that underpaid workers may seek recovery of any underpayments, pecuniary penalties (except in small claims proceedings) and other civil remedies.
Despite recent Government action to address underpayments, non-compliance remains a persistent problem. Several inquiries, including the Migrant Workers’ Taskforce and the Senate Inquiry into Unlawful Underpayment of Employees’ Remuneration, have recommended the introduction of a criminal offence for wage theft to further deter wage underpayments.
Part 14 of Schedule 1 proposes amendments to the FW Act to introduce a new criminal offence for wage theft (new section 327A), which would apply to intentional conduct. It would rely on Parts 2.4 and 2.5 of the Schedule 1 to the Criminal Code Act 1995 (Criminal Code) to establish pathways for prosecuting ancillary and corporate criminal liability relating to the new offence. Provision would be made for the Commonwealth to be liable for an offence, and for the FWO to investigate suspected underpayment crimes (including of ‘related offence provisions’ as defined, which are provided for under the Criminal Code).
This measure aims to encourage compliance with the relevant workplace laws and further deter wrongdoing, particularly where the conduct is intentional.
Compliance outcomes would be further improved (as proposed by Part 11 of Schedule 1) by increasing civil pecuniary penalties for contraventions of civil remedy provisions involving worker exploitation. Details of the proposed civil pecuniary penalty increases are set out in more detail below.
The proposed new offence for wage theft (and related provisions), coupled with proposed increases to relevant civil pecuniary penalties, would promote the right to just and favourable conditions of work by improving compliance with the relevant workplace laws. Criminalising wage theft will further deter deliberate underpayments, and higher civil pecuniary penalties for contraventions involving worker exploitation would help promote a robust ‘compliance culture’ in relation to workplace laws across Australian businesses.

Definition of employment

Part 15 of Schedule 1 would positively engage the right to the enjoyment of just and favourable working conditions by ensuring that a fairer test applies when determining the ordinary meanings of ‘employee’ and ‘employer’ for the purposes of the FW Act.
The Bill would ensure the totality of the relationship, including the terms of the employment contract and the manner of performance of the contract, must be considered when characterising a relationship as one of employment or one subject to a contract for services. The provision is intended to address the existing common law test as set out in the High Court’s decisions in Personnel Contracting and Jamsek, which provides that the question of whether an individual is an employee or independent contractor is to be determined with reference only to the terms of the written contract (if there is one), with limited exceptions.
Expanding the frame of reference for the categorisation of a work relationship would positively engage rights in work by enhancing fairness. Fairness will be enhanced by requiring that the question of a workers’ status be determined by reference to all relevant aspects of the relationship. These amendments would ensure workers are correctly categorised, even in the face of a carefully drafted contract which may not fully reflect how the contract is performed in practice.
The new interpretive principle is consistent with the approach set out in Article 9 of the ILO’s Employment Relationship Recommendation, 2006 (No. 198) (ILO Recommendation 198), which seeks to promote an objective of decent work and provides that:

For the purposes of the national policy of protection for workers in an employment relationship, the determination of the existence of such a relationship should be guided primarily by the facts relating to the performance of work and the remuneration of the worker, notwithstanding how the relationship is characterized in any contrary arrangement, contractual or otherwise, that may have been agreed between the parties.

Whether a worker is categorised as an employee or as an independent contractor under a contract for services has significant implications for the rights and protections to which they are entitled. For the most part the FW Act confers rights and imposes obligations on, and in respect of the relationship between, an employer and an employee.
This Bill would result in some persons who are currently purportedly engaged as independent contractors becoming employees for the purposes of those parts of the FW Act where ‘employee’ and ‘employer’ are expressed to have their ordinary meaning. This would promote rights in work by extending to those workers who become employees by operation of the amendments a range of entitlements and protections only conferred on individuals who come within the meaning of ‘employee’ and work under arrangements reflective of a contract of

Provisions relating to regulated workers

Part 16 of Schedule 1 would promote the right to work and rights in work as it would provide the FWC the ability to make minimum standards for employee-like workers and regulated road transport contractors, collectively ‘regulated workers’.
The right to just and favourable conditions of work, as set out in the ICESCR, is not limited to workers within an employment relationship. By extending certain minimum standards to regulated workers, these provisions of the Bill engage and promote Article 7 of the ICESCR.
Part 3A-2 – MSOs and MSGs: Under new Part 3A-2 the FWC would be empowered to make either binding (MSOs) or non-binding (MSGs) minimum standards for regulated workers, which could include (but not be limited to) payment terms, deductions, working time, record-keeping, insurance, consultation, representation, delegates’ rights and/or cost recovery.
Given regulated workers do not currently have a simple, fair and relevant safety net of minimum terms and conditions, this measure would clearly promote the rights of these workers to just and favourable conditions of work.
New road transport objective and minimum standards objective: Part 16 would introduce a minimum standards objective (new section 536JX) and a road transport objective (new section 40D) into the FW Act.
New section 536JX would promote the right to just and favourable conditions by requiring the FWC to take into account the need for an appropriate safety net of minimum standards for regulated workers when performing functions or exercising its powers under Part 3A-2 that, among other things:

deals with minimum rates of pay:
takes into account all necessary costs for regulated workers covered by an MSO or MSG;
ensure that workers covered by an MSO or MSG receive pay comparable to the pay and conditions that employees performing comparable work would receive.

This would go towards ensuring fair wages and comparable remuneration for work of similar value.
When performing a function or power in relation to certain matters relating to the road transport industry, new section 40 would also require the FWC to also take into account the road transport objective, which would include the need for standards that ensure that the road transport industry is safe, sustainable and viable. Ensuring the road transport industry is safe, sustainable and viable would promote the right to work for people working in that industry, including by helping to ensure safe and healthy working conditions.
Part 3A-4 – collective agreements for regulated workers: Part 3A-4 would further promote the right to the enjoyment of just and favourable conditions of work by providing a simple, flexible and fair framework that enables consent-based collective agreement making between regulated businesses (that is, digital labour platform operators and road transport businesses) and registered employee organisations.
Collective agreements would be able to be made about the terms and conditions under which regulated workers perform work, and how agreements operate.
Expanding access to collective bargaining would promote the right to enjoyment of just and favourable conditions of work by enabling organisations representing workers to collectively secure safe, healthy and fair conditions.
Interaction rules would further promote a regulated workers’ rights in work and ensure no regulated worker is worse off, by ensuring a term of a collective agreement would have no effect in relation to the extent that the term is detrimental to a worker in any respect, when compared to an applicable MSO or a State or Territory law that deals with the same matter.
Part 3A-3–Unfair deactivation and unfair termination: The right to work includes the right to not be deprived of work unfairly. Part 16 would insert new Part 3A-3. This would provide new protections for employee-like workers and road transport contractors against unfair deactivation and unfair termination respectively. Reactivation or reinstatement would be the primary remedy for unfair deactivation or termination respectively. These new protections would go towards ensuring these people are not deprived of work unfairly, thus promoting the right to work.

Amendment of the Asbestos Safety and Eradication Agency Act 2013

The prevention of occupational diseases is a fundamental aspect of the right to just and favourable conditions of work. Its realisation requires the adoption of a national policy for the prevention of diseases, minimising hazards in the working environment and ensuring broad participation in its formulation, implementation and review, in particular of workers and employers and their representative organisations.
The policy should also promote the collection and dissemination of reliable and valid data on the fullest possible range of occupational diseases and include appropriate enforcement provisions and adequate penalties for violations.
Schedule 2 to the Bill would promote the right to safe and healthy working conditions by expanding the current remit of ASEA to include prevention of silica-related occupational diseases. The amendments would enhance the promotion of safe and healthy working conditions by setting out the priority matters for the Silica National Strategic Plan. These would include, eliminating or minimising exposure to respirable crystalline silica, raising silica safety awareness, and improving research and national data.
Workplace exposure to respirable crystalline silica is a serious issue threatening the lives of Australian workers. The increase in silicosis and other silica-related occupational diseases has raised the need for urgent national action and coordination. Silica reform is complex and sits across multiple portfolios and jurisdictions. ASEA’s role as a coordinating agency reflects the jurisdictional nature of addressing asbestos, and now silica.
The Bill would expand the Agency’s functions to include a focus on silica safety and coordination, awareness raising, reporting and providing advice to government on silica safety and silica-related diseases. Further, this Bill would promote and assist current efforts to manage silica risks in the workplace and eliminate silica-related diseases.
The Council’s functions would also be broadened to reflect these changes. The addition of members with silica-related knowledge or experience, and its expanded silica-related functions, would effectively contribute towards ensuring safe and healthy working conditions.
The Bill would promote the right to safe and healthy working conditions for those working with respirable crystalline silica as it would establish a cross-jurisdictional governance mechanism for national silica action, with aims to eliminate silica-related diseases by preventing exposure to respirable crystalline silica.
The Bill would also promote Article 7 through facilitating the new Agency’s data collection, analysis and reporting functions to inform about the jurisdictional efforts to implement the national silica and asbestos strategic plans.

Amendment of the Work Health and Safety Act 2011

Rights to work and rights in work are engaged by Schedule 4 to the Bill as it strengthens the offences and penalties framework in the WHS Act, providing greater deterrence for poor safety management in workplaces. 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.
The prevention of occupational accidents and diseases is a fundamental aspect of the right to just and favourable conditions of work. Its realisation requires the adoption of a national policy for the prevention of accidents and work-related injuries by minimising hazards in the working environment and ensuring broad participation in its formulation, implementation, and review, in particular by workers, employers, and their representative organisations.
This Bill promotes the right to safe and healthy working conditions by:

strengthening the Commonwealth WHS offences regime by introducing a new industrial manslaughter offence to punish and deter the most egregious breaches of WHS duties;
including provisions to allow for corporate and Commonwealth criminal liability through attribution of conduct engaged in on behalf of a body corporate or the Commonwealth by defined persons to these entities – that is, the conduct is taken to have been engaged in by the body corporate or the Commonwealth;
increasing penalty amounts across the WHS Act by 39.03 per cent (excluding Category 1 – see discussion below), and inserting a mechanism to increase penalties annually in line with national CPI so penalties maintain their real value over time; and
significantly increasing penalties for the Category 1 offence to reflect the seriousness of a breach of that provision.

Strengthening the Commonwealth WHS framework through these measures would promote the right to safe and healthy working conditions by deterring non-compliance with WHS laws and facilitating more effective prosecutions of bodies corporate and the Commonwealth.

Right to protection and assistance for families

Article 9 of the ICESCR provides for the right of everyone to social security, including social insurance. Elaborating on Article 9, the Committee on Economic, Social and Cultural Rights provided in General Comment 19 that ‘States parties should … ensure the protection of workers who are injured in the course of employment or other productive work’.[3] 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.
The right to protection and assistance to families in Article 10(2) of the ICESCR, recognises protection should be accorded to mothers during a reasonable period before and after childbirth.

Amendment of the Safety, Rehabilitation and Compensation Act 1988

The amendments to the SRC Act at Schedule 3 to the Bill are intended to improve the physical and mental health outcomes for first responders covered by the SRC Act by simplifying their access to workers’ compensation if they are suffering from PTSD. Employment will be presumed to have significantly contributed to PTSD suffered by first responders for the purposes of workers’ compensation.
If a person does not satisfy the requirements of subsection 7(11) of the SRC Act (for example, by not meeting the definition of ‘first responder’), it remains open for the employee to otherwise establish, on the balance of probabilities, that the disease was contributed to, to a significant degree, by the employee’s employment.

Right to physical and mental health

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 UN 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.
The steps to be taken by the States Parties to the present Covenant to achieve the full realisation of this right shall include those necessary for:

…

(b) The improvement of all aspects of environmental and industrial hygiene;

Amendment of the Asbestos Safety and Eradication Agency Act 2013

Schedule 2 to the Bill would positively engage this right. Promoting ‘industrial hygiene’ involves taking steps to protect the work environment by reducing workers’ exposure to substances that impact upon human health including where workplace exposure to respirable crystalline silica results in people developing serious health conditions. New Part 1A and Item 15 would provide the Agency with functions related to silica safety and coordination and monitoring of jurisdictional efforts to eliminate silica-related occupational diseases.
New section 5B and paragraphs 8(1)(b) and 8(1)(d) would confer on the Agency various functions in relation to the Silica National Strategic Plan. In new section 5B, the definition of the term ‘Silica National Strategic Plan’ specifically refers to supporting workers who are affected by silica-related diseases’ and ‘eliminating or minimising the exposure to respirable crystalline silica in workplaces’. These provisions would require the Agency to focus on addressing matters which would result in improving industrial hygiene in Australian workplaces.
Further, it is likely that conditions such as mesothelioma, asbestosis and silicosis are diseases for the purposes of Article 12(2)(c).
The Bill would promote the right to health by broadening the object of the ASEA Act to include elimination of silica-related diseases. One of the Agency’s key objectives would be to lead coordinated and national action to eliminate asbestos and silica-related diseases by collaborating with States, Territories and local governments, and other relevant persons on the development of the Asbestos National Strategic Plan and Silica National Strategic Plan. The Agency would also be required to undertake various activities in relation to encouraging, coordinating and monitoring implementation of the plans and collaborating with governments about asbestos and silica safety and related diseases.
New subsection 8(1) would provide that the Agency’s functions would broadly include eliminating or minimising exposure to respirable crystalline silica, raising silica safety awareness, and improving research and national data. Therefore, the Bill would promote the right to health as the Agency’s functions would be directed towards preventing and eliminating asbestos and silica-related diseases.

Amendment of the Safety, Rehabilitation and Compensation Act 1988

By simplifying the workers’ compensation process for first responders suffering PTSD, the amendments to the SRC Act promote access to those first responders suffering PTSD to rehabilitation and compensation, embracing their right to the highest attainable standard of mental health.

Amendment of the Work Health and Safety Act 2011

The right to physical and mental health expressed in Article 12 of the ICESCR is engaged by this Bill as the United Nations Committee on Economic Social and Cultural Rights has stated that the right to health concerns safe and healthy working conditions. Guidance from the Attorney-General’s Department clarifies that where Article 12(2)(b) mentions ‘industrial hygiene’ this ‘refers to the minimisation, so far as is reasonably practicable, of the causes of health hazards inherent in the working environment’.
This Bill promotes the right to physical and mental health by strengthening the offences and penalties framework which accompany a person’s duty to minimise the causes of health hazards inherent in the working environment. The Bill achieves this by amending the WHS Act to better deter non-compliance with WHS duties.

Right to an effective remedy and right to a fair hearing

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.
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.

Casual employment

Part 1 of Schedule 1 would positively engage the right to a fair remedy by implementing a new dispute resolution framework for the FWC to deal with disputes between employers and employees about employee choice and casual conversion.
Part 1 would require the parties to first attempt to resolve the dispute at a workplace level. If this is unsuccessful, the amendments would allow employees to make applications to the FWC to deal with disputes as it considers is appropriate, including by mediation, conciliation, making a recommendation or expressing an opinion, or mandatory arbitration.
The Bill would further promote the right to an effective remedy by enabling the FWC to make binding orders, having regard to what is fair and reasonable. Parties can also, on application, have the dispute heard in the small claims jurisdiction of the Federal Circuit and Family Court of Australia.

Closing the labour hire loophole

Part 6 of Schedule 1 would positively engage the right to a fair remedy by creating a new low-cost dispute resolution mechanism by allowing an affected party to apply to the FWC to resolve a dispute and by providing for parties to be represented by an organisation entitled to represent their industrial interests.
Consistently with other dispute resolution processes in the FW Act, the parties would be required to attempt to resolve the dispute at the workplace level before applying to the FWC. If these discussions did not resolve the dispute, the FWC would be required to first deal with the dispute other than by arbitration, such as by mediation or conciliation.
If mediation or conciliation were unsuccessful, and the parties agree to the FWC arbitrating the dispute, the FWC’s order could apply to work performed before and after the order is made. If the parties do not consent to arbitration, the order could only apply prospectively in relation to work performed after the order is made. The FWC would not be able to make the order unless satisfied it is fair and reasonable. This is consistent with the scope of the FWC’s power as an administrative tribunal rather than a court.

Workplace delegates’ rights

Part 7 of Schedule 1 would positively engage the right to a fair hearing by creating a right for workplace delegates to represent members who are in dispute with their employer or relevant regulated business. This would improve the ability for workers to access representation by their workplace delegates. The proposed rights to reasonable communication with members and reasonable access to the workplace would also support the efficacy with which workplace delegates can perform their roles. Although disciplinary or dispute processes in the workplace do not rise to the level of a hearing before a court or tribunal, the outcomes of these processes can have a substantial impact on the workers involved. Improving the ability for workers to seek assistance from a workplace delegate, and removing barriers to delegates providing such representation or assistance, would help to maintain the procedural fairness of these processes.
The Bill would also positively engage the right to an effective remedy by establishing a process for workplace delegates, in new sections 350A and 350B, to challenge behaviour that is inconsistent with the rights of delegates provided for by the new section 350C. Although the FW Act acknowledges their existence, there is currently limited legislative protection for workplace delegates. In some circumstances, workplace delegates might be able to avail themselves of the protections for participating in industrial activities (Division 4 of Part 3-1 of the FW Act), however there are currently no rights specific to workplace delegates. Establishing a purpose-built protection against unreasonably hindering or obstructing a workplace delegate would complement the existing protections and ensure that workplace delegates are able to enforce the proposed positive rights.

Provisions relating to regulated workers

Part 16 of Schedule 1 relating to standard setting for regulated workers would positively engage the right to an effective remedy by:

requiring MSOs for regulated workers and collective agreements to include terms providing a procedure for settling disputes; and
allow for regulations to be made to empower the FWC to conduct an internal merits review of a decision to make or vary an RTMSO.

Part 3A-3 establishes quick, flexible and informal procedures for the resolution of unfair deactivation and termination claims that address the needs of both the regulated businesses and regulated workers, thereby promoting the right to an effective remedy. The associated remedies under the new provisions would further enhance this right, by enabling the FWC to make a variety of orders, with reactivation/reinstatement being the primary remedy. The efficient and effective resolution of disputes, and therefore the promotion of the right to a fair hearing, would be assured by empowering the FWC to determine whether it is appropriate to hold a conference or a hearing, taking into account the differences of the parties’ circumstances and their wishes.
This measure would allow the FWC to make an order for costs against a party in a matter arising under new Part 3A-3 (unfair deactivation or unfair termination of regulated workers). While this could be construed as having the potential to limit a person’s access to justice (if the risk of costs acts as a disincentive), this provision should not bar access to the FWC in relation to new Part 3A-3. Costs could only be awarded under the new provision if a party’s unreasonable act or omission relating to the conduct or continuation of the matter caused the other party to incur costs. This is targeted towards litigants who pursue or defend unfair termination or unfair deactivation claims in an unreasonable manner. This would also disincentivise a party with ‘deeper pockets’ from acting unreasonably to increase the other party’s own costs in an attempt to discourage parties from bringing proceedings against them or encourage a party to settle on unfavourable terms. In this respect the measure will enhance the right to a fair hearing.
Part 3-5–Unfair contract terms: A remedy under Part 3-5 would only be available to independent contractors who earn below a high income threshold. This measure is targeted at people with low bargaining power and lower pay for whom the costs of going to court could act as a disincentive or outright bar to seeking a remedy. For those applicants, the lower costs and increased accessibility of the FWC as compared to the federal courts would enhance their right to an effective remedy.
Independent contractors with incomes above the contractor high income threshold would continue be able to access the existing unfair contracts protections under the IC Act, ensuring that they would still have the right to an effective remedy.
This Part would prevent people from ‘double dipping’ by pursuing or obtaining multiple remedies in relation to the same services contract. However, to ensure that a person would still be able to obtain an effective remedy, they could still commence proceedings under Part 3-5 or another law so long as the applicant discontinued the other proceedings, or the proceedings failed for lack of jurisdiction.
Appropriate transitional and application provisions in Part 17 of Schedule 1 would further ensure that no litigants or potential litigants under the IC Act are disadvantaged, confused or suffer delays because of the commencement of the FWC’s new jurisdiction. Proceedings currently before the courts and applications relating to contracts entered into prior to commencement would be able to be conclusively determined under the IC Act.

Criminal process rights

Articles 14 and 15 of the ICCPR protect criminal process rights:

Article 14(1) provides that all persons shall be equal before the courts and tribunals, and that in the determination of any criminal charge against a person, that person is entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law;
Article 14(2) provides that those charged with a criminal offence are presumed innocent until proven guilty according to the law;
Article 14(3) sets out a range of guarantees that each person shall be entitled to in the determination of any criminal charge against them. This includes the right not to be compelled to testify against themselves or to confess guilt;
Article 14(7) protects against the risk of double punishment; and
Article 15(1) protects against criminal penalties applying retrospectively.

Casual employment

Part 1 of Schedule 1 in relation to casual employees do not directly engage rights in relation to criminal process, but these amendments do propose to enact several civil remedy provisions.
New civil remedy provisions would be included in relation to contravening an order of the FWC or engaging in sham casual arrangements. The maximum penalty for these contraventions would be 300 penalty units. Contravention of an FWC order will often result in underpayments due to misclassification. This penalty is consistent with other underpayment-related penalties, and for sham casual arrangements is consistent with increased penalties for sham arrangements in relation to independent contractors.

Closing the labour hire loophole

The amendments to close the labour hire loophole would not directly engage rights in relation to criminal process but they do provide for civil remedies. This includes penalties where a labour hire provider fails to pay an employee in accordance with Part 2-7A where a regulated labour hire order is in place, where a regulated host does not provide certain information to an employer on request, or where a party contravenes an order of the FWC.
The maximum penalty a court could order would be 600 penalty units for a serious contravention or otherwise 60 penalty units. This is consistent with the maximum penalty that currently applies under the FW Act in relation to similar conduct, for example, contravening an equal remuneration order. This penalty is proportionate to the seriousness of the contravention, noting that the measure is directed towards preventing the undercutting of bargained rates.
Appropriate safeguards are built into the new civil penalty provisions. For example, an employer who does not pay a regulated employee the protected rate of pay in accordance with Part 2-7A will not be liable to a civil penalty if they reasonably relied upon information provided by a regulated host and the information was incorrect.
The anti-avoidance provisions would apply retrospectively, with application from the date the Bill is introduced in the Parliament. This means penalties may apply in relation to conduct engaged in before the Bill commences. This is reasonable and proportionate to prevent businesses from taking steps to avoid obligations under new Part 2-7A before the Bill commences. Parties will be on notice about their obligations as the legislation will be publicly available when it is introduced.

Workplace delegates’ rights

Part 7 of Schedule 1 providing for specific workplace delegates’ rights do not directly engage rights in relation to criminal processes, but they do provide for civil remedies. Specifically, the Bill would introduce a new protection against employers and regulated businesses unreasonably failing or refusing to deal with a workplace delegate, knowingly or recklessly making a false or misleading representations to a workplace delegate, or unreasonably hindering, obstructing or preventing the exercise of a workplace delegate’s rights.
The protection would not apply when an employer or regulated business has acted reasonably. The onus would be on the employer or regulated business to prove their conduct was not unreasonable, as the employer or regulated business is best placed to provide evidence about the reasons and intent behind the actions they took (or did not take).
This protection would also not be engaged if the employer or regulated business is taking actions required under a Commonwealth or State or Territory law.
The maximum pecuniary penalty for contravening this new civil remedy provision would be 60 penalty units for an individual, or 300 penalty units for a body corporate. This is consistent with the maximum penalties which apply to contraventions of existing civil remedy provisions in Part 3-1 of the FW Act, including the protections against adverse action and coercion. The new civil penalty provisions will only apply to conduct which occurs after the date the respective Divisions commence. This positively engages the protection against retrospective application of penalties in relation to civil remedies.
In some circumstances, action by an employer which obstructs a workplace delegate might contravene both the proposed civil remedy provisions, and the existing civil penalty provision prohibiting adverse action taken because an employee has exercised, or proposes to exercise, a workplace right. This will not expose employers or regulated businesses to a risk of double punishment. Section 556 of the FW Act prevents a court from ordering that a person pay a pecuniary penalty if a pecuniary penalty has already been imposed under another provision of a law of the Commonwealth in relation to the same conduct.
Overall, this measure would have a neutral impact on criminal process rights.

Sham arrangements

The prohibition of certain sham contracting arrangements in subsection 357(1) of the FW Act does not directly engage rights in relation to criminal processes, but does provide for civil remedies.
The existing provision in section 357 of the FW Act places the onus on an employer to prove they have a defence to sham contracting. Whilst the new provision changes the nature of the defence to sham contracting, it does not change this burden of proof. The burden is on the employer because it is a defence and the burden of proving a defence usually rests with the party seeking to rely on it. Further, the employer is best placed to provide evidence about the belief they held when making the representation.
There is a legitimate objective to this evidential burden and it is confined within reasonable limits considering the question to be answered. The provision does not impose criminal penalties, for the reasons articulated at paragraph 177 below. However, to the extent that section 357 may limit criminal process rights those limitations are reasonable, necessary and proportionate

Penalties for civil remedy provisions

The Parliamentary Joint Committee on Human Rights (PJCHR) Practice Note 2 provides that civil penalty provisions may engage criminal process rights under Articles 14 and 15 of the ICCPR, regardless of the distinction between criminal and civil penalties in domestic law. A penalty may be considered ‘criminal’ where it:

is classified as criminal under Australian law;
is intended to punish or deter, and applies to the public in general (rather than being restricted to people in a specific regulatory context); or
includes imprisonment or a substantial pecuniary sanction.

When a provision imposes a civil penalty, an assessment is required as to whether it amounts to a criminal penalty for the purposes of ICCPR.
New civil remedy provisions should not be considered criminal penalties: The Bill includes several new civil penalty provisions. The penalty provisions of the FW Act are expressly classified as civil penalties (section 549). These provisions create pecuniary penalties in the form of a debt payable to the Commonwealth or other person. The civil penalty provisions do not impose criminal liability, and do not lead to the creation of a criminal record. There is no possibility of imprisonment for failing to pay a penalty (section 571).
The purpose of the civil penalty provisions is to encourage compliance with the FW Act, which supports the implementation of Australia’s obligations under international law. The penalties would generally apply to defined classes of employers and not the public in general. While the FWO has enforcement powers, proceedings may also be brought by an affected employee or union. In addition, the civil remedy provisions would apply in the regulatory environment for industrial relations, rather than to the public at large. These factors all suggest that the civil penalties imposed by the FW Act are civil rather than criminal in nature.
The severity of the relevant civil penalties should be considered low. They are pecuniary penalties (rather than a more severe punishment like imprisonment) and there is no sanction of imprisonment for non-payment of penalties. The penalties are generally at or below the level usually considered to be severe enough to be classified as criminal (that is, below 60 penalty units for individuals).
As the proposed new civil penalties would reasonably be characterised as not being criminal in nature, the specific criminal process guarantees in Articles 14 and 15 of the ICCPR would not apply. In any event, however, new civil penalties, and the civil penalty regime in the FW Act more broadly, comply with the requirements of Articles 14 and 15 in that they would not apply retrospectively (Article 15(1)), the presumption of innocence applies (Article 14(2)), and there is no risk of double punishment as there are no comparable criminal penalties (Article 14(7)).
On this basis, the proposed new penalties should not be considered criminal for the purposes of human rights law.

Wage theft

The Bill proposes amendments to introduce a new criminal offence for wage theft (new section 327A), which would apply to intentional conduct. It would rely on Parts 2.4 and 2.5 of the Criminal Code to establish pathways for prosecuting ancillary and corporate criminal liability relating to the new offence. Provision would be made for the Commonwealth to be liable for an offence, and for the FWO to investigate suspected underpayment crimes (including of ‘related offence provisions’ as defined, which are provided for under the Criminal Code).
Criminalising wage theft engages criminal process rights. The proposed offence provision, if enacted, would sit within the broader Commonwealth criminal framework, including the Crimes Act and Criminal Code, which guarantees criminal process rights as provided for in Articles 14 and 15. Further comments relating to Article 14(3) are made below.
In addition to these rights:

the FW Act provides for an appeals process from decisions of eligible State or Territory courts (section 565);
the FW Act protects against criminal/civil double jeopardy (section 552), and would protect an accused while criminal proceedings are on foot, by staying any related civil proceedings against the person (where a pecuniary penalty order is sought) (section 553); and
proposed transitional arrangements for the proposed new offence for wage theft (new section 327A) would make clear that the new offence provision applies prospectively, that is to conduct that occurs after commencement.

Absolute liability elements: The Bill limits the presumption of innocence by imposing absolute liability for certain offence elements. The application of absolute liability limits the presumption of innocence to the extent that it allows for the imposition of criminal liability without requiring the prosecution to prove fault in the defendant.
According to the Guide to Framing Commonwealth Offences, absolute liability may be acceptable where an element is essentially a precondition of an offence and the state of mind of the defendant is not relevant. For the new offence for wage theft (new section 327A), absolute liability would attach to 2 preconditions for the offence, that is:

the employer is required to pay an amount (a required amount) to, on behalf of, or for the benefit of, an employee under (new paragraph 327A(1)(a)):
1. the FW Act; or
2. a fair work instrument; or
3. a transitional instrument (as continued in existence by Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009); and
the required amount is not (new subparagraph 327A(1)(b)):
1. a contribution payable to a superannuation fund for the benefit of the employee; or
2. an amount covered by subsection (2).

It is also appropriate to apply absolute liability to paragraph 327A(1)(b), because this is a jurisdictional element. New paragraph 327A(1)(b) does not relate to the substance of the offence, but marks a boundary between matters that are within scope for the offence and those that are not. The Commonwealth Guide to Framing Offences explains that applying absolute liability to a particular physical element of an offence may be justified where the element is jurisdictional, rather than one going to the essence of the offence.
Further, the absolute liability measures are proportionate in that they only apply to elements of the offence and not to the offence as a whole. In this respect, the prosecution will still be required to prove, beyond a reasonable doubt, all other elements of the offence including fault elements.
The substance of the offence is in new paragraphs 327A(1)(c) and (d), for which the fault element is intention (paragraph 327A(3)(b)):

For new paragraph 327A(1)(c), the prosecution will have to prove beyond a reasonable doubt that the defendant intentionally engaged in the relevant conduct.
For new paragraph 327A(1)(d), the prosecution will have to prove beyond a reasonable doubt that the defendant intended that their conduct would result in a failure to pay the required amount to, on behalf of, or for the benefit of, the employee in full on or before the day when the required amount is due for payment.For there to be an offence, the person must mean to bring about the result (that is, a failure to pay the required amount), or be aware that result will occur in the ordinary course of events (refer to s 5.2 of the Criminal Code).

These fault elements ensure that only serious conduct involving underpayments is caught by the offence provision, which justifies the corresponding sanctions.
For these reasons, it is appropriate to attach absolute liability to the preconditions to the offence in new paragraphs 327A(1)(a) and (b).
Abrogating the privilege against self-incrimination: The Bill would expand the circumstances in which Fair Work Inspectors may exercise their existing powers, as they would be able to investigate suspected wage theft under the proposed new offence provision and ‘related offence provisions’. A number of minor or technical amendments (explained elsewhere) are proposed to ensure that outcome.
Sections 713 and 713A abrogate the privilege against self-incrimination in the specified circumstances. With some exceptions, subsection 713(2) and section 713A of the FW Act generally provide that if an individual produces a document or record in compliance with specified provisions, that record or document, and any evidence obtained as a direct or indirect consequence of inspecting that document or record, is not admissible in evidence in criminal proceedings. The immunity is different in the case of an individual who gives information, or produces a record or document, or answers a question, under a FWO notice (see subsection 713(3)).
Items 228 to 230 of the Bill would provide that the immunities conferred by subsections 713(2) and (3) and section 713A do not apply to two classes of documents. The first is an employee record that is required to be made and kept under section 535 of the FW Act. The second is a copy of a pay slip that has been created in relation to an employee (see section 536 of the FW Act).
As a result of the amendments, these employee records and copies of pay slips may be used in evidence.
To the extent that these amendments limit the rights under Article 14 of the ICCPR, those limitations are reasonable, necessary and proportionate.
Sections 535 and 536 of the FW Act require employers to keep the employee records and issue pay slips to employees. If an employer is lawfully required to produce and keep (or issue) these documents and records, then it is not reasonable for their use in evidence to be prevented.
Records required to be kept and pay slips required to be issued under sections 535 and 536 of the FW Act are often central to establishing that an underpayment has occurred in civil proceedings. The immunities conferred by subsections 713(2) and (3) and section 713A would significantly impair Fair Work Inspectors’ ability to effectively investigate the new wage theft criminal offence.
Further, the records and documents must only be produced in limited circumstances: the documents may only be produced and inspected/copied while a Fair Work Inspector is on the premises or following the provision of a notice.
To the extent these amendments limit the rights under Articles 14 and 15 of the ICCPR, they are appropriate as they seek to achieve the legitimate objective of protecting employee entitlements, recovering underpayments and prosecuting criminal non-compliance. The commencement and application provision, and the operation of existing sections 552 and 553 of the FW Act, operate to reduce any conflict with the relevant Articles 14(3)(g) and 15(1).

Amendment of the Work Health and Safety Act 2011

Measures in Schedule 4 of the Bill engage and limit criminal process rights.
Part 1 of Schedule 4: There will be no limitation period for bringing proceedings for an industrial manslaughter offence (Item 7). New subsection 30A(5) states that for the purposes of alternative verdicts, the general limitation period of 2 years which otherwise applies to Category 1 and 2 offences (with some exceptions – see existing section 232) is displaced (Item 1).
The absence of limitation periods for industrial manslaughter and alternative verdicts could limit a defendant’s right to a fair trial. This is particularly relevant to the right in Article 14(3)(c) of the ICCPR that everyone is entitled to be tried without undue delay and the principle of ‘equality of arms’ in Article 14(1), which requires that all parties to a proceeding must have a reasonable opportunity of presenting their case under conditions that do not disadvantage them as against other parties to the proceedings. Where no limitation period applies it could be difficult for an officer to defend themselves years after the fact. People with relevant knowledge may have moved on and evidence may be difficult to access.
Any limitation on the right to a fair trial arising from not applying limitation periods to the industrial manslaughter offence and alternative verdicts is justifiable because it would be necessary to pursue a legitimate objective and is reasonable, necessary and proportionate.
- A limitation period would be inappropriate for an offence as serious as industrial manslaughter. The absence of a limitation period is consistent with other manslaughter offences.
- Disapplying limitation periods in relation to alternative verdicts seeks to ensure the accused does not escape punishment on technical grounds. This would mean that if the prosecution commenced industrial manslaughter proceedings outside the limitation period that applied to, for example, a Category 2 offence (2 years after the offence first comes to the notice of the regulator or 1 year after a coronial finding – see section 232 of the WHS Act), it would not impact the ability of a court to find the accused guilty of a Category 2 offence in the alternative.
Reasonable excuse: The Category 1 offence is drafted to align with the model Act and therefore includes a ‘reasonable excuse’ defence in paragraph 31(1)(b). The reasonable excuse defence imposes the evidential burden on the defence to establish that a reasonable excuse justifying their conduct existed.
The reasonable excuse defence contained in section 31 of the WHS Act enlivens the presumption of innocence in Article 14(2) of the ICCPR. As explained above, a reverse onus provision will not necessarily violate the presumption of innocence provided the law is not unreasonable in the circumstances and maintains the rights of the accused. Such a provision may be justified if the nature of the offence makes it very difficult for the prosecution to prove each element, or if it is clearly more practical for the accused to prove a fact than for the prosecution to disprove it. To the extent section 31 limits the presumption of innocence, that limitation is justified on the basis that it is more practical for the accused to bear the evidential burden in relation to whether a reasonable excuse for their conduct existed.
Legal burden for defence like provisions in new sections 244B, 244C, 245B and 245C: New subsection 244B(2) would create defences that provide paragraphs 244B(1)(b) and (c) do not apply if the body corporate proves it took reasonable precautions to prevent the conduct, authorisation, or permission of the conduct. New subsection 244B(2) requires the defendant to discharge the legal burden in relation to that matter, that is, they must positively prove that such reasonable precautions were taken. Section 13.5 of the Criminal Code provides that a legal burden imposed on the defendant must be discharged on the balance of probabilities. This reversal of the burden of proof is necessary because the steps taken to prevent WHS breaches are peculiarly within the knowledge of the defendant. Also, the inside access to specialised information and corporate knowledge available to the body corporate as to the actual steps taken, and the context for those choices, would mean that it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.
Additionally, the conduct proscribed by WHS offences poses a grave danger to public health or safety. Conduct constituting a WHS breach often poses a such danger.
New sections 244C, 245B and 245C are substantially the same as new section 244B and the explanation above applies.
Strict liability: The Parliamentary Joint Committee on Human Rights has noted the imposition of strict or absolute liability will not violate Article 14(2) where it pursues a legitimate aim and is reasonable and proportionate to that aim.
The Bill would introduce an industrial manslaughter offence which would include strict liability elements. Importantly, the offence also requires the prosecution to prove either negligence or recklessness and that the conduct was intentional. Strict liability only applies to certain elements.
Most offences in the WHS Act include strict liability elements or are strict liability. Strict liability as a feature of WHS Act offences was carefully considered when the WHS Act was first introduced. The presumption of innocence can be seen to be impinged by removing the requirement for the prosecution to prove fault in relation to one or more physical elements of an offence. However, WHS strict liability offences arise in a regulatory context where, for reasons such as public safety, and the public interest in ensuring that regulatory schemes are observed, the sanction of criminal penalties is justified.
WHS offences also arise in a context where a defendant can reasonably be expected, because of their professional involvement, to know the requirements of the law, and the mental, or fault, element can justifiably be excluded. The rationale is that people who owe WHS duties such as employers, persons in control of aspects of work, and designers and manufacturers of work structures and products, as opposed to members of the general public, can be expected to be aware of their duties and obligations to workers and the wider public. The industrial manslaughter offence would apply to PCBUs, and ‘officers’ (the most senior persons in an organisation).
The legitimate aim of strict liability for WHS offences, to ensure defendants operating in the WHS regulatory context are held accountable for breaches of their positive duties to ensure a safe and healthy workplace, is proportionate to any limitation it places on the presumption of innocence.

Right to privacy and reputation

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home and correspondence. This includes respect for informational privacy, including in respect of storing, using, and sharing private information and the right to control the dissemination of personal and private information. Privacy guarantees a right to secrecy from the publication of personal information. It also prohibits unlawful attacks on a person’s reputation.

Exemption certificates for suspected underpayment

The FW Act establishes a right of entry scheme for entry permit holders, including entry to investigate suspected contraventions (section 481) which is subject to (among other things) at least 24 hours’ notice. Provision is made to waive the 24 hour-notice period by applying to the FWC for an exemption certificate, with a view to preventing the possibility of destruction, concealment or alternation of relevant documents and records (section 519).
It is proposed that the grounds for the issue of an exemption certificate should be expanded, so the notice period may also be waived if the FWC is satisfied that the suspected contravention, or contraventions, involve the underpayment of wages, or other monetary entitlements, of a member of the organisation whose industrial interests the organisation is entitled to represent and who performs work on the premises. This measure would be subject to comprehensive safeguards against misuse of the entry powers.
There may be concerns that this measure may engage the right to privacy. However, there is no proposal in this measure to change either the grounds for entry, or to modify the existing limits and protections for entry scheme under Part 3-4. This means that the existing framework will continue to:

limit the exercise of the relevant entry rights to workplaces and working hours only (subsections 481(1), 490(1));
limit access to member records as set out in section 482, subject to the existing application process in section 483AA;
prohibit entry permit holders from intentionally hindering and obstructing any other person when exercising rights of entry, or otherwise acting in an improper manner (section 500);
restrict the unauthorised use or disclosure of information or documents (section 504); and
prohibits an entry permit holder from entering any part of premises that is used mainly for residential purposes (section 493).

For these reasons, the proposed measure does not engage the right to privacy.

Provisions related to regulated workers

Section 712AA would be consequentially amended by Part 16 of Schedule 1 to provide that the FWO may apply to a nominated AAT presidential member for an FWO notice in relation to the underpayment of monetary entitlements under an MSO, the unfair deactivation of an employee-like worker or unfair termination of a regulated road transport contractor.
A FWO notice may require a person to give information, produce documents or attend before the FWO and answer questions relevant to an investigation. The person who is been given a FWO notice must comply with the notice, and if they do not, they could be subject to a civil penalty.
By extending the circumstances under which a person can be required by a FWO notice to produce documents, give information or attend an examination to answer questions, this provision would limit the right to privacy.
The objective of this measure is to ensure that the FWO would be able to secure positive investigation outcomes in relation to underpayment of monetary entitlements under an MSO or the unfair deactivation of an employee-like worker or unfair termination of a regulated road transport contractor.
The limitation on privacy would be necessary, reasonable and proportionate. The ability to use these powers would be particularly important where there are no relevant documents that appear to be available and subsequently the investigation into these matters has stalled. These powers would also be important to enable the FWO to establish whether a contravention of an MSO would constitute a serious contravention by determining whether the conduct was deliberate.
These powers are currently available for investigations into matters such as the underpayment of wages or other monetary entitlements of employees, and the unfair dismissal of employees. The FWO should have the same powers in investigations into similar matters involving regulated workers, otherwise this would perpetuate the disadvantage already faced by these workers.
Extending the FWO notice regime to breaches of MSOs and collective agreements would ensure the FWO’s coercive powers would continue to only be used for the intended purpose of facilitating investigations into the exploitation of vulnerable workers, specifically in relation to underpayments and entitlements.
Additionally, the FWO notice regime has adequate safeguards, including:

The requirement that the FWO believes on reasonable grounds that a person has informational documents relevant to an investigation and is capable of giving evidence and sets this out in an affidavit.
The requirement that an AAT member can only issue the FWO notice if satisfied that there are reasonable grounds to believe the person has information or documents or is capable of giving evidence relevant to the investigation and that of obtaining information, documents or evidence have been attempted and have been unsuccessful or are not appropriate.
Protection from liability relating to FWO notices.
The requirement that the FWO notify the Commonwealth Ombudsman of the issue of a FWO notice and provide a report about the examination.

Amendment of the Asbestos Safety and Eradication Agency Act 2013

New section 14A inserted by Schedule 2 would provide for the Chief Executive Officer of the Agency to request information from a person in certain circumstances and an express permission for a person to provide the requested information.
New subsections 14A(5)–(6) would provide an express permission that a person can rely on to provide the requested information, if they consider the disclosure to the new Agency is appropriate. This express permission would not compel a person to provide information when requested. New subsection 14A(6) would provide that a person may disclose information to the Agency in response to a request despite anything in a law of the Commonwealth (other than the ASEA Act) or a law of a State or Territory. This means that a non-disclosure provision in other legislation that would otherwise prevent information being disclosed to the new Agency, does not prevent its disclosure.
This amendment engages the right to privacy because information that may be disclosed could include personal information and non-disclosure provisions that otherwise apply may be overridden.
To the extent that the right to privacy is limited by the amendment it is considered that limitation is necessary to achieve a legitimate objective. The purpose of the amendment is to ensure that information necessary to support the Agency’s research, data and reporting functions can be collected. Silica issues are complex and require coordination and information sharing across portfolios as well as jurisdictions. This amendment is intended to facilitate information sharing between government agencies and bodies. New section 14A is framed broadly to provide flexibility for the future. For example, ASEA has a very cooperative approach and in the future the Agency may form partnerships with non-Governmental organisations and request information from such bodies as well.
Tracking progress against the national strategic plans and developing evidence-based research relies on input from a range of sources including all State and Territory governments. This amendment would ensure that persons with relevant information are able to provide that information to the Agency.
The amendment is reasonable and proportionate, as information must be necessary for the performance of the Agency’s research, data and reporting functions. This would involve for example, data on number of diagnosed cases of silicosis or other silica-related diseases in each State and Territory. It would not include for example, a person’s medical record as that would not be necessary for the performance of the Agency’s functions. Failing to fulfil a request would not be an offence and broad discretion will be retained by the person holding information. There could be a range of legitimate reasons why a request may not be fulfilled, including if, for example, providing the information requested would cause unnecessary duplication of work and create an administrative burden on the person.
The Agency would be subject to a range of obligations to ensure that the information it obtains is handled appropriately:

Personal information collected by the Agency is subject to the requirements of the Privacy Act 1988 which governs its collection, use, disclosure, storage and disposal.
As Australian Public Service (APS) employees, the Agency’s employees would be bound by the APS Code of Conduct, including regulation 2.1 (duty not to disclose information) which applies to information obtained by the Agency related to the performance of its statutory functions. A breach of the Code of Conduct by an APS employee may lead to the imposition of sanctions up to and including termination of employment.
The Criminal Code includes offences relating to the unauthorised disclosure of information by current (and former) Commonwealth officers, including APS employees, punishable by terms of imprisonment (of between two and seven years depending on the circumstances of the offence).

Right to freedom of association

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).

Workplace delegates’ rights

Workplace delegates have various roles and responsibilities necessary for the ongoing support and functioning of registered employee organisations. They can serve as the first point of contact for members of an employee organisation within the workplace, including when a worker is considering joining an employee organisation, and represent worker concerns in the workplace.
There is currently limited legislative protection or specific rights for workplace delegates performing these roles within a workplace. Delegates may have to use annual leave or take unpaid time off work to undertake training necessary to their roles in the registered organisation. Employers may also seek to prevent delegates from communicating with members or eligible members while at the employer’s premises. Consequently, in some circumstances it may be difficult for delegates to provide effective support and representation to members and eligible members in the workplace. Imposing such restrictions on workplace delegates can have an impact on how effectively they can perform their roles, and consequently take lawful industrial activity and protected industrial action.
Part 7 of Schedule 1 would require that modern awards and all new enterprise agreements contain a term that deals with workplace delegates’ rights. These terms must include a right to represent members within their workplace and various supporting rights, including rights to reasonable access to paid time off for training, and reasonable access to the workplace and workplace facilities for advancing their members’ industrial interests. The Bill would support these new protections for workplace delegates by introducing a specific protection against an employer unreasonably failing or refusing to deal with the workplace delegate, making a false or misleading representation to the workplace delegate, or unreasonably hindering or obstructing the exercise of a workplace delegate’s rights.
These amendments would positively engage the right to freedom of association, particularly Article 8(c) of the ICESCR which guarantees the right of trade unions to function freely, subject to no limitations other than those prescribed by law. These amendments would ensure that workplace delegates are afforded these basic primary rights within the workplace to carry out their delegate duties.

Exemption certificates for suspected underpayment

These amendments would positively engage the right to freedom of association, particularly Article 8(1)(c) of the ICESCR which guarantees the right of trade unions to function freely, subject to no limitations other than those prescribed by law. Of particular relevance is guidance provided by the Committee of Experts on the Application of Conventions and Recommendations of the International Labour Conference which acknowledges ‘the right of trade union officers to have access to places of work’ pursuant to Article 3 of ILO Convention 87 (Freedom of Association and Collective Bargaining, 81^st session, Report III, Part 4B at [128]).
Part 3-4 of the FW Act provides a framework for right of entry for officials of organisations and employers the FWC to deal with the misuse of rights and disputes.
These amendments would waive the minimum 24-hour notice period required for entry to investigate a suspected contravention of the FW Act, or a term of a fair work instrument, in specified circumstances, namely, that the permit holder’s organisation has been issued with an exemption certificate on the ground of a suspected underpayment. This would enhance access to the workplace for officials of registered organisations (who are permit holders) to effectively investigate suspected contraventions and exercise powers under Part 3-4 including interviewing relevant persons and inspecting relevant records and documents.
In addition, the measure will protect permit holders exercising rights under Part 3-4 against people acting in an improper manner towards them.
The measure positively engages the right to freedom of association by enhancing the ability of permit holders to investigate suspected wage underpayments.

Withdrawal from amalgamations

This measure engages the right to freedom of association and the right to take part in public affairs and elections, by proposing to:

repeal provisions of the RO Act that enable applications for a de-merger ballot to the FWC (to initiate a de-merger process) to be made more than five years after the relevant amalgamation (RO Act, section 94A); and
repeal paragraph (c) of the definition of ‘separately identifiable constituent part’ to restore certainty about the part(s) of an organisation that may be subject to a de-merger ballot (RO Act, section 93(1)).

This measure would restore the provisions as they were before amendments made by the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Bill 2020 (2020 amendments). The measure would strengthen the principle of freedom of association by removing the instability and uncertainty that has been brought about by the 2020 amendments.
The measure would restore the old arrangements for de-amalgamations, which provide a reasonable opportunity for members of a constituent part of an amalgamated organisation with a connection to a previously de-registered organisation to de-merge within a period of two to five years after the relevant amalgamation occurred. The measure would also not preclude members from forming, joining or seeking the registration of trade unions and employer organisations subject to the requirements of the RO Act and the rules of those organisations.

Provisions relating to regulated workers

The new collective agreement framework in Part 16 of Schedule 1 would provide for the making of collective agreements between regulated businesses and organisations that are entitled to represent the industrial interests of regulated workers. Further, organisations that represent the industrial interests of a person who is party to a services contract would be able to apply to the FWC for a remedy under the new unfair contract terms provisions. These amendments would positively engage the right to freedom of association by enhancing the ability of trade unions to advocate for their members and enhancing their role.
Item 268 would insert new subsection 350(2A), which would provide that a regulated business must not induce a regulated contractor to take, or propose to take, membership action. While existing subsection 350(2) would apply to most regulated businesses and regulated workers, it would not necessarily apply to those digital labour platforms that do not directly enter into a contract for services with an independent contractor. As such, new subsection (2A) would ensure these digital labour platform operators, and their workers are also covered. Under existing subsection 350(3), a person takes membership action if they become, do not become, remain or cease to be, an officer or member of an industrial association. By extending this protection to more people, the Bill would promote the right to freedom of association.

Right to collective bargaining

ILO Convention 98 protects the right of workers to collectively bargain for terms and conditions of employment. It requires States Parties (among other things) to take measures appropriate to national conditions to encourage and promote machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.

Enabling multiple franchisees to access the single-enterprise stream

Part 3 of Schedule 1 would enhance the ability of employees of franchisees to collectively bargain for terms and conditions of employment by allowing them to access the single-enterprise stream. This would provide employees of franchisees with more options when bargaining, and would allow employees of franchisees to access a more straightforward bargaining stream.
Franchisees are able to access the existing single interest employer stream, in Division 10 of Part 2-4 (Enterprise agreements) of the FW Act, where the application for a single interest employer authorisation is made by the employers that would be covered, or by a bargaining representative for an employee who would be covered where other criteria are satisfied including that each employer employs at least 20 people. Employees of franchisees that employ fewer than 20 people may therefore be unable to access this stream without the consent of the employers concerned.
Allowing franchisees to access the single-enterprise agreement stream will remove this barrier, allowing employees of franchisees to seek a majority support determination regardless of the number of employees of each franchisee. The Bill would therefore promote the right to collective bargaining by providing an additional means of reaching agreement on the terms and conditions of employment which may be more accessible for employees of franchisees where the employer does not consent to multi-enterprise bargaining and each individual employer employs fewer than 20 people.
The single-enterprise agreement stream may also be the preferable bargaining stream for franchisees as a separate vote at each franchise would not be required. This is intended to make bargaining for such an agreement more attractive to franchisees and increase the willingness of franchisees to bargain with their employees.
By making bargaining more accessible and more attractive to franchisees, the Bill is intended to increase bargaining between franchisees and their employees. In this way, the Bill would support the right to collective bargaining.

Transitioning from multi-enterprise agreements

Part 4 of Schedule 1 supports the right to collective bargaining as it expands the circumstances in which an enterprise agreement can be bargained for and made. The amendments in Part 4 would allow a single-enterprise agreement to be made with employees to whom a single interest employer agreement or supported bargaining agreement that has not nominally expired applies.
At present, an employer specified in a supported bargaining authorisation is prohibited from bargaining for a single-enterprise agreement with employees covered by a supported bargaining authorisation unless all of its employees are covered by a supported bargaining agreement. Part 4 would allow bargaining for a replacement single-enterprise agreement to occur where not all of the employees specified in the authorisation are covered by a supported bargaining agreement. This would support the right to collective bargaining.

Provisions relating to regulated workers

New Part 3A-4 inserted by Part 16 of Schedule 1 would allow the FWC to register consent collective agreements between a digital labour platform operator and an organisation entitled to represent employee-like workers, or a road transport business and an organisation entitled to represent regulated road transport contractors. In doing so, it would promote the right to collectively bargain consistently with the objectives and provisions of ILO Convention 98.
Collective agreements would be about the terms and conditions under which regulated contractors perform work. The collective agreement making process would be simple and flexible and ensure that barriers to making and implementing agreements are as low as possible. Parties would be free to negotiate the terms of a collective agreement without interference. This would act as an incentive to make a collective agreement.
Further, section 536JT would authorise certain conduct for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 (CCA) and Competition Code. This would include making a collective agreement and anything done by a person or entity in preparation for, or incidental to, making, or applying for registration of, a collective agreement. This authorisation would enable the relevant parties to make and comply with collective agreements without breaching the CCA and Competition Code. By limiting appropriately these competition related restrictions on the ability to make collective agreements, this measure would further promote the right to collectively bargain.

Right to equality and non-discrimination

Both the ICCPR (Article 2(1)) and the ICESCR (Article 2(2)) require States Parties to the covenants to guarantee that the rights set out in these covenants are exercised without discrimination of any kind, including on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 26 of the ICCPR further provides that States Parties must ensure that all persons are equal before the law and are entitled, without any discrimination, to the equal protection of the law.

Stronger protections against discrimination

Adding ‘subjection to FDV’ as a protected attribute in the FW Act would promote the rights to equality and non-discrimination by protecting vulnerable employees from discrimination within Australia’s workplaces. Terms within modern awards and enterprise agreements that discriminate against an employee because they have been, or continue to be, subjected to FDV would be prohibited by these amendments. The amendments would also protect employees and prospective employees from adverse action, such as being dismissed or refused employment, on account of the employee’s or prospective employee’s subjection to FDV. The amendments would further promote anti-discrimination protections and equality by requiring the FWC to consider the need to prevent discrimination against employees subjected to FDV whilst performing its functions. The amendment would also complement protections against discrimination for victim-survivors of FDV which exist in some States and Territories.

Right of women not to be discriminated against based on gender

The CEDAW provides that in relation to discrimination against women, State Parties must:

ensure the effective protection of women against acts of discrimination (Article 2(c));
ensure the full development and advancement of women (Article 3); and
take all appropriate measures to eliminate discrimination against women in the field of employment to ensure the same rights between men and women (Article 11). This includes the right to equal remuneration, equal treatment in respect of work of equal value, and equality of treatment in the evaluation of the quality of work (Article 11(1)(d)).

Article 26 of the ICCPR requires State laws to guarantee equal and effective protection against discrimination on a number of grounds, including sex.

Casual employment

The Workplace Gender Equality Agency has noted that women are overrepresented in casual employment.[4] Furthermore, ABS data shows that not only are women more likely than men to be casual (53.2 per cent of casual employees are women),[5] they are more likely than men to be long term casuals. Of the 752,200 casual employees employed for more than two years, 55.7 per cent were women.[6]
This may add to the gender pay gap, noting casual employees are, on average, paid less than permanent employees, and exacerbates job insecurity for women workers. Casual employee average weekly earnings (in main job) were $845.60, whereas permanent employee average weekly earnings were $1,691.10, a difference of $845.50.[7]
The amendments that would be made by Part 1 of Schedule 1 would positively engage the right of women not to be discriminated against based on gender by providing an easier pathway to permanent employment for those who choose it.

Stronger protections against discrimination

While FDV can affect anyone, it is recognised as a form of gendered violence that disproportionately affects women. Discrimination on the basis of subjection to FDV is therefore more likely to affect employees and prospective employees who are women. The amendments in Part 8 of Schedule 1, by protecting against such discrimination, would positively engage the rights of women not to be discriminated against based on gender in the context of employment.

Rights of parents and children

Article 3(1) of the CRC provides that the best interests of the child must be a primary consideration in all actions undertaken by legislative bodies.
Article 18(1) of the CRC goes on to state that parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of their children. Similarly, Article 5(b) of the CEDAW provides parties shall take measures to promote the recognition of the common responsibility of men and women in the upbringing and development of their children.

Casual employment

The amendments that would be made by Part 1 of Schedule 1 would positively engage the right to protection and assistance for families by providing a pathway to permanent employment for casual employees in caring roles. Employees who are classified as casual on engagement but whose working arrangements thereafter are not reflective of true casual employment could more easily opt to change their status to permanent under the proposed amendments. This would provide an opportunity for these employees to access paid leave and other entitlements in relation to care and family responsibilities, including paid carer’s leave, which is not available to casual workers.

Conclusion

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

Award Interpretation Impacts of the Closing the Gap Bill 2023

Award Interpretation Details in the Proposed Act

Extract of the Award Interpretation details from the Act

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Overview of the Bill

Casual employment

Small business redundancy exemption

Enabling multiple franchisees to access the single-enterprise stream

Transitioning from multi-enterprise agreements

Model terms

Closing the labour hire loophole

Workplace delegates’ rights

Strengthening protections against discrimination

Sham arrangements

Exemption certificates for suspected underpayment

Penalties for civil remedy provisions

Compliance notice measures

Withdrawal from amalgamations

Wage theft

Definition of employment

Provisions relating to regulated workers

Amendment of the Asbestos Safety and Eradication Agency Act 2013

Amendment of the Safety, Rehabilitation and Compensation Act 1988

Amendment of the Work Health and Safety Act 2011

Human rights implications

Rights to work and rights in work

Right to protection and assistance for families

Right to physical and mental health

Right to an effective remedy and right to a fair hearing

Criminal process rights

Right to privacy and reputation

Right to freedom of association

Right to collective bargaining

Right to equality and non-discrimination

Right of women not to be discriminated against based on gender

Rights of parents and children

Conclusion