Downsized Closing Loopholes Bill passes in Parliament after surprise Labor-crossbench deal

Intentional wage theft will be criminalised, and ‘same job, same pay’ rules for labour hire workers will come into effect, after select measures from the Albanese government’s Closing Loopholes Bill passed in the Senate on Thursday.

A surprise deal between Workplace Relations Minister Tony Burke and Senate crossbenchers David Pocock and Jacqui Lambie allowed the government’s omnibus industrial relations bill to be carved in two, ensuring its legislation on the last parliamentary sitting day of the year.

As a result, the following measures will come into law:

• ‘Same job, same pay’ rules for labour hire workers occupying identical roles to a host company’s employees;
• The criminalisation of intentional wage and superannuation theft;
• The criminalisation of industrial manslaughter;
• Expanding access to workers compensation for first responders in relation to post-traumatic stress disorder;
• Reshaping the Asbestos Safety and Eradication Agency so it covers include silica and silica-based illnesses;
• Boosting protections for those experiencing family and domestic violence so they do not face discrimination in the workplace;
• The closure of a loophole that allowed medium-sized businesses to avoid redundancy payment obligations when downsizing.

Debate over the remainder of the Closing Loopholes Bill, which includes a plan to set new standards in the gig economy, and establish a formal definition of casual work, will resume next year.

The deal marks a reversal from the Albanese government, which until Thursday had publicly signalled it would not carve non-contentious measures from the omnibus bill so they could be passed before the holiday break.

Speaking in the Senate, Lambie thanked Burke’s office for “coming to the table” after weeks of public debate over the contentious split proposal.

The Greens also backed the split-up IR reforms, after putting forward the superannuation theft amendment to Labor’s original Bill.

However, speaking in the Upper House on Thursday morning, Shadow Minister for Employment and Workplace Relations Michaelia Cash said Burke deserved an “Olympic gold medal for the backflip that has been done”.

The deal marks a “devastating day for Australian businesses”, she continued.

Nationals Senator Bridget McKenzie said the changes will “create more complexity and uncertainty, add more cost to small businesses and farmers, make Australians pay more, do nothing to increase productivity and actually will put jobs at risk”.

Crossbenchers pledge protections for small business

In the three-way deal, Senators Lambie and Pocock said they also secured protections for small businesses set to be covered by the new legislation.

Senator Lambie secured extra funding for the Fair Work Ombudsman to assist small businesses in becoming aware of their new obligations.

The criminalisation of wage and superannuation theft will only come into effect once a small business Code of Conduct is established, giving small business employers leeway if they can prove under- or nonpayment was a genuine error.

“This is only intentional wage theft, because we know that mistakes are made,” Pocock said in the upper house.

“In this legislation we’ve ensured that small businesses are looked after, with these provisions not starting until the small business code is in place and, as Senator Lambie said, there is further resourcing for the Fair Work Ombudsman to engage with small businesses.”

Lambie also flagged she would fight for small business protections in the second half of the omnibus Bill.

“We also need to be careful about the impact on the smaller businesses,” she said, reflecting on the measures around the new casual work conversion proposal.

Under the government plan, casual employees at small businesses will be able to access the new conversion pathway after 12 months, instead of six months for big businesses.

“We want to make sure that that stays in place and there aren’t unintended consequences for small businesses from this, even though they are exempt,” Lambie said.

“I will work in good faith with the government — as we always do, regardless of who’s in government — and the minister on part 2 of the Closing Loopholes Bill.

“But I can assure you that it is a long way from being a free pass.”