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Home | Member Updates | Closing Loopholes Bill: Amendments effective 15 December 2023

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Closing Loopholes Bill: Amendments effective 15 December 2023

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19 December 2023

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Summary: Effective since the 15th of December 2023, the Closing Loopholes Bill has been implemented bringing notable changes relevant to universities as employers. The significant elements are the lengthened rights for workplace delegates, protection against domestic violence discrimination, and a compulsory conference for all bargaining representatives.

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Key amendments to the Closing Loopholes Bill came into effect on 15 December 2023. The elements that will be of most significance to universities as employers are set out below.

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Workplace delegates’ rights

The Industrial Activities provisions in the Fair Work Act 2009 (‘’FW Act’’) have been expanded to include new provisions relating to rights and protections for workplace delegates. A workplace delegate is defined as "a person who is appointed in accordance with the rules of an employee organisation".

Delegates will have rights to:

  • reasonable communication with current and prospective members. 
  • reasonable access to the workplace and facilities for the purpose of representing industrial interests of current and prospective members. 
  • reasonable access to paid time during normal working hours for the purpose of related training. 

In determining what is ‘’reasonable'', regard must be had to the size and nature of the enterprise, the resources of the employer of the workplace delegate, and the facilities available at the enterprise. 

The employer of a workplace delegate must not:

  • unreasonably fail or refuse to deal with the workplace delegate. 
  • knowingly or recklessly make a false or misleading representation to the workplace delegate. 
  • unreasonably hinder, obstruct or prevent the exercise of the rights of the workplace delegate under the Act or a fair work instrument. 

The burden of proving that the conduct of the employer is not unreasonable will be on the employer. 

By 1 July 2024, all modern awards must include a delegates’ rights term. Enterprise agreements approved by vote on or after 1 July 2024 must include a delegates’ rights term that is no less favourable than the term in the modern award. 

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Strengthening protections against discrimination

The FW Act now includes “subjection to family and domestic violence’’ as a basis on which a person must not be discriminated against in the workplace. This protects employees or prospective employees who are victims of FDV against adverse action, and also means that awards and enterprise agreements cannot contain terms that discriminate on that basis. 

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Compulsory conciliation conferences for PABOs

From 6 June 2023, the FW Act was amended to require all bargaining representatives to attend a compulsory conference after the issue of a Protected Action Ballot Order, for purposes of conciliation and mediation in relation to the proposed new enterprise agreement.The December amendment provides that only those bargaining representatives who applied for the PABO must attend. This means that employees represented by non-applicant bargaining representatives may still take protected industrial action even if their bargaining representatives do not attend the conference.  

The Fair Work Commission has set up a page on its website that provides further information and will be continually updated. 

If you have any questions, please contact Cathy Pugsley or Marcus Miller.

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