Business Chamber Queensland IR Alert

The IR Alert is a member-only benefit from the Workplace Advisory Services team. 

New IR Reforms Agenda: Member feedback sought

A further tranche* of reforms are proposed to to the Fair Work Act 2009 (Cth) (‘FW Act’). The proposed reforms that are proposed centre on the following:

• The casual employment definition
• The concept of same job, same pay
• Introducing a national system of wage theft as a criminal offense (noting that Queensland has had such a system for several years)
• Extending the role of the Fair Work Commission to include ‘employee-like’ forms of work for entitlement purposes
• Extending the right of workers to challenge unfair contract terms
• Providing stronger protections from discrimination, adverse action and harassment
• Introducing a national system of labour hire regulation (noting that Queensland has had such a system for several years)

*not an exhaustive list

Member feedback is sought on some of the above listed concepts that are likely to be developed as reforms to be introduced in the second half of 2023.

While the feedback sought in this edition of the IR Alert does not cover every concept on the above list, please keep an eye out on future editions as member feedback will be sought on those at once consultation papers are available for review.

Feedback item: Criminalising wage theft

Download a copy of the discussion paper HERE.

This proposed reform reflects recommendations of the Migrant Workers’ Taskforce with respect to the practice of some employers underpaying migrant workers.

It is proposed wage underpayment to be made a criminal offense under a national scheme.

During 2021-22, the Fair Work Ombudsman recovered more than $500,000 for the non payment of nearly close to 385,000 workers.

NOTE: wage theft has been a criminal offense in Queensland since September 2020, therefore the concept is not new.

Business Chamber Queensland is calling for member insight given the current wage theft provisions in Queensland.

Members seeking to provide feedback are encouraged to email advice@businesschamberqld.com.au with your answer to the following question:

• Should criminal offenses for record-keeping misconduct be introduced to complement a criminal offense for wage underpayment?

The timeframe for feedback is very short, therefore if you have feedback to provide, please do so via the above email address by close of business on Thursday, 11 May 2023.

Feedback item: Same job same pay

Download a copy of the discussion paper HERE.

The proposed Same Job, Sam Pay measure is focused on ensuring when a business engages labour hire workers, the labour hire workers will be paid the same as an employee the business has directly engaged – where they are doing the same work.

The proposed measure will amend the FW Act to include:

• an entitlement for labour hire employees to receive the same pay as directly engaged employees when doing the same work; and
• an obligation on labour hire providers and host employers to take reasonable steps to ensure labour hire workers receive the same pay as directly engaged employees when doing the same work.

Members seeking to provide feedback are encouraged to email advice@businesschamberqld.com.au with your answer to the following questions:

1. When and why does your business engage labour hire workers?
2. What criteria would you use determine if a labour hire worker is performing the same job as a direct employee? For example, would it be appropriate to apply position descriptions/duties or apply modern award/enterprise agreement classifications to determine if a labour hire worker is performing the same job as a direct employee?
3. Is it appropriate to factor in incentives, bonuses or other specified monetary entitlements specific to a direct employee when paying a labour hire worker performing the same job?
4. Should labour hire providers and host employers have the same level of liability of ensuring the Same Job, Same Pay measure is applied? For example, what information should they be required to share to ensure the Same Job, Same Pay measure is applied?
5. If the cost of engaging labour hire workers increases, would you stop engaging labour hire workers?
6. Should the proposed Same Job, Same Pay measure be the same for small businesses (under 15 employees)?

The timeframe for feedback is very short, therefore if you have feedback to provide, please do so via the above email address by close of business on Thursday, 11 May 2023.

New member fact sheet

On 7 December 2022, amendments were made to the Fair Work Act 2009 (Cth) which prohibits employers from including pay secrecy clauses in their contracts of employment. Employees have now been provided with new protections, allowing them to ask and discuss remuneration information freely with another person.

Any employment contracts which include a pay secrecy clause, that were in effect before 7 December 2022 are no longer enforceable and must be amended to remove any pay secrecy clauses.

The Fair Work Ombudsman has provided a grace period until 7 June 2023 to allow sufficient time for employers to comply with the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. Any businesses that retain or include pay secrecy clauses after 7 June 2023 will be in breach of the Act and could potentially face fines for serious contraventions of up to $165'000.

Business Chamber Queensland has created a Fact Sheet for members with some frequently asked questions concerning pay secrecy. The Fact Sheet also contains a couple of template letters which can be used to inform employees about pay secrecy changes.

Members can contact the Workplace Relations team via advice@businesschamberqld.com.au to request a copy of the fact sheet.

NOTE: this fact sheet is not available to non-members.

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Our advisors can help you with information about WorkCover claims, how to handle returning to work, case reviews and appeals processes, and more. We can also help you understand the steps in the process, where to find relevant information and who to speak to at different points along the way.    
  
Our service is available to all Queensland employers through this website and by calling  1300 365 855 and speaking with an advisor or emailing    workcoverinfo@busiensschamberqld.com.au
  
As part of Business Chamber Queensland’s free workers' compensation information service to Queensland employers Business Chamber Queensland has made available free resources to assist employers who are preparing the return to work process for an employee.  Contact workcoverinfo@busiensschamberqld.com.au for details.

Further information and assistance

Members with any queries regarding pay secrecy should contact the Workplace Advisory Services team on 1300 135 822 or advice@businesschamberqld.com.au