Publication
Mission impossible? Teresa Ribera’s mission letter and the future of EU merger review
Executive Vice President Vestager’s momentous tenure as Commissioner responsible for EU competition policy is nearing its end.
Australia | Publication | February 2024
This article was co-authored with Millie Jones and Ying Yi Lim.
As discussed in our article late last year, the Fair Work Legislation Amendment (Closing Loopholes Act 2023 (the Act)) was passed by Parliament on 7 December 2023. The Act introduced significant changes to “close the labour hire loophole” and prevent bargained rates in enterprise agreements from being undercut by the use of labour hire. The Act received Royal Assent on 14 December 2023.
As foreshadowed, in this article, we consider a number of other changes introduced by the Act which:
The next article in our series will discuss the changes contained in the Closing Loopholes No 2 Bill, which includes the right to disconnect.
The Act amends the Fair Work Act (Cth) (FW Act) to introduce a new wage theft offence which imposes criminal liability on employers for intentionally engaging in conduct resulting in underpayments to their employees.
These provisions will commence from the later of 1 January 2025 or the date on which the Minister declares a Voluntary Small Business Wage Compliance Code.
Employers will commit an offence if they:
There are some limited exceptions for certain employees in relation to superannuation contributions, long service leave payments, and some leave payments.
Prosecution for this new wage offence can only be commenced by the Director of Public Prosecutions or the Australian Federal Police.
Maximum penalties for companies that engage in wage theft will be:
For individuals, the maximum penalties will be:
If an employer identifies underpayments within its workplace, it can seek ‘safe harbour’ from criminal prosecution by reporting the matters to Fair Work Ombudsman (the FWO). The FWO may then decide to enter into a written ‘cooperation agreement’ with the employer.
To decide whether to enter into a cooperation agreement with an employer, the FWO will take into account:
The Act also provides that the Minister may declare a Voluntary Small Business Wage Compliance Code, and that the FWO must not refer a matter to the DPP or the AFP where it is satisfied that a small business employer has complied with that Code.
The FW Act provides that small business employers (those with less than 15 employees) are not required to pay redundancy pay under the National Employment Standards (NES).
In the period leading up to liquidation or bankruptcy, employers often look at incrementally decreasing their workforce to minimise operating costs, and may become a “small business employer” as a result of such workforce decreases. Where (for example) bookkeeping, payroll and other administrative staff are retained to assist with the orderly wind up of the business, they miss out on redundancy entitlements if the employer has become a small business employer due to the termination of its other employees.
The changes to the FW Act mean that an employee of a small business will be entitled to redundancy pay under the NES, where their employment was terminated due to redundancy and:
This change does not affect how the small business redundancy exemption currently applies to viable small businesses, including businesses that have restructured from being a large employer and are continuing to trade in the ordinary course.
This change took effect on 15 December 2023. It will not apply to employees terminated before that date (or if the terminations causing the business to become a small business employer occurred before then).
The Act also increases the safeguards available to employees who are subject to family and domestic violence (FDV).
Previously, being a person subjected to FDV was not a protected attribute in the FW Actor under other Federal anti-discrimination laws, but was protected by some State and Territory anti-discrimination laws.
The Act amends the FW Act to:
These changes commenced on 15 December 2023.
With the new year well in train, it is timely for businesses to consider how these changes will impact upon your operations and personnel.
If you would like to discuss how best to navigate the new regime, please don’t hesitate to contact us.
Publication
Executive Vice President Vestager’s momentous tenure as Commissioner responsible for EU competition policy is nearing its end.
Publication
On November 28, 2023, the European Commission (EC) adopted its first list of Projects of Common Interest (PCIs), i.e., projects within the EU territory, and Projects of Mutual Interest (PMIs), i.e., projects connecting the EU with other countries, including 166 projects implementing the European Green Deal.
Publication
On 10 October 2024, the UK government published its long awaited response (the Response) to its January 2024 consultation on “Designing a policy framework to enable investment in long duration electricity storage” (the Consultation).
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