Bill
Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021
passed, as at 2021-03-26. Industrial Relations portfolio.
- Sponsor
- Not recorded
- Portfolio
- Industrial Relations
Recorded stages
- introduced — 2020-12-09
- second reading — 2020-12-09
- second reading — 2021-02-17
- second reading — 2021-02-18
- second reading — 2021-02-22
- second reading — 2021-02-23
- second reading — 2021-02-23
- committee — 2021-02-23
- third reading — 2021-02-23
- introduced — 2021-02-25
- second reading — 2021-02-25
- second reading — 2021-03-16
- second reading — 2021-03-17
- second reading — 2021-03-18
- second reading — 2021-03-18
- committee — 2021-03-18
- third reading — 2021-03-18
- other — 2021-03-22
- passed — 2021-03-22
- royal assent — 2021-03-26
Divisions
- The majority voted in favour of agreeing with the main idea of the bill. In other words, they voted to read it for a [second time](https://peo.gov.au/understand-our-parliament/how-parliament-works/bills-and-laws/making-a-law-in-the-australian-parliament/). This means it can now be considered in more detail. ### What is the bill's main idea? This bill is part of the Government's plans for Australia's economic recovery. The parliamentary library has not yet provided a bills digest, so there is no easy explanation for the bill's provisions available, but according to the [explanatory memorandum](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Fems%2Fr6653_ems_b350c2c5-3b57-4c5f-9f38-b9e157fb0e28%22;rec=0) (which is a political document prepared by whoever introduced the bill - in this case, the Government), the purpose of the bill is: * *providing certainty to businesses and employees about casual employment;* * *giving regular casual employees a statutory pathway to ongoing employment by including a casual conversion entitlement in the National Employment Standards (NES) of the Fair Work Act;* * *extending two temporary JobKeeper flexibilities to businesses, in identified industries significantly impacted by the pandemic;* * *giving employers confidence to offer part-time employment and additional hours to employees, promoting flexibility and efficiency;* * *streamlining and improving the enterprise agreement making and approval process to encourage participation in collective bargaining;* * *ensuring industrial instruments do not transfer where an employee transfers between associated entities at the employee’s initiative;* * *providing greater certainty for investors, employers and employees by allowing the nominal life of greenfields agreements made in relation to the construction of a major project to be extended;* * *strengthening the Fair Work Act compliance and enforcement fram — 2021-02-23, House of Representatives: affirmative, ayes 66, noes 61
- The majority voted in favour of a [motion](https://www.openaustralia.org.au/senate/?gid=2021-03-18.34.10) to agree with the main idea of the bill. In parliamentary jargon, they voted to read it for a [second time](https://peo.gov.au/understand-our-parliament/how-parliament-works/bills-and-laws/making-a-law-in-the-australian-parliament/). The bill will now be discussed in more detail. ### What does this bill do According to the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2021a/21bd053): > *The Bill’s proposed reforms primarily relate to casual employment, flexibility under modern awards for industries impacted by COVID-19, the making and approval of enterprise bargaining agreements, greenfield agreements for major projects and compliance and enforcement (including responding to wage theft). The Bill’s amendments can be grouped as follows:* > > * *Schedule 1 makes amendments to insert a definition of casual employment, provide for a casual conversion process and to address issues around ‘double dipping’ with respect to casual loading* > * *Schedule 2 makes amendments providing that employers covered by identified modern awards can offer additional hours to part-time employees and issue flexible work directions to employees* > * *Schedule 3 makes amendments to the current requirements around enterprise agreements including in relation to the operation of the Better Off Overall Test (BOOT) and agreement approval processes* > * *Schedule 4 make amendments to allow eight year greenfields agreement for major projects* > * *Schedule 5 makes amendments in relation to compliance and enforcement including by introducing new penalties and criminalising certain forms of wage theft* > * *Schedule 6 makes amendments in relation to when the FWC [Fair Work Commission] can dismiss applications and vary or revoke its own decisions.* > * *Schedule 7 provides for relevant application, saving and transitional provisions with respect to other parts — 2021-03-18, Senate: affirmative, ayes 32, noes 30
- The majority voted in favour of a [motion](https://www.openaustralia.org.au/senate/?gid=2021-03-18.44.5) that: > *[division 2](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=LEGISLATION;id=legislation%2Fbills%2Fr6653_first-reps%2F0007;query=Id%3A%22legislation%2Fbills%2Fr6653_first-reps%2F0000%22;rec=0#140cd707c70e41a587b2a65f735567ea) in item 1 of schedule 7 stand as printed.* In other words, they voted to keep that division unchanged. ### What does Division 2 do? Division 2 includes proposed clauses 45 to 48. According to the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2021a/21bd053): > *Proposed clause 45 of Schedule 1 to the Act, at item 1 of Schedule 7 to the Bill provides that employers, employees or employee organisations can apply for the FWC to make a determination to vary an enterprise agreement made before commencement of the reforms to resolve any uncertainty regarding the interaction of the agreement with the proposed definition of casual employee and proposed casual conversion process* > > *Proposed clause 46 of Schedule 1 to the Act, at item 1 of Schedule 7 provides: > > * *existing employees that would have met the proposed statutory definition of casual employment when engaged (or when given an offer of employment) will be considered casual employees both at the commencement of the Bill and retrospectively (this does not apply to employees who were the subject of a binding court decision or converted their status prior to commencement)* > > * *employees that are retrospectively deemed casual employees, who could have otherwise made a claim for accrued entitlements, will not be able to do so* > > *Proposed clause 47 of Schedule 1 to the Act, at item 1 of Schedule 7 provides a six month transitional period where employers musts assess existing casual employees against conversion eligibility criteria (this includes employees designated as ‘casual’ but who may not meet the proposed statutory de — 2021-03-18, Senate: affirmative, ayes 33, noes 31
- The same number of senators voted for and against a [motion](https://www.openaustralia.org.au/senate/?gid=2021-03-18.46.1) that: > *opposition amendments (1) and (4) to (7) on [sheet 1254](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Famend%2Fr6653_amend_40315df7-fc1b-40ad-b514-842f54cd191e%22;rec=0), moved by [Senator Wong](https://theyvoteforyou.org.au/people/senate/sa/penny_wong), be agreed to* In other words, the same number of senators voted for and against those amendments and so, as a majority was not reached, they failed. ### Amendment text > *(1) Schedule 5, item 4, page 68 (line 4), omit "Subject to subsection (3A), the", substitute "The".* > > *(4) Schedule 5, page 75 (after line 15), after item 10, insert:* > >> *10A At the end of section 557C* >> >> *Add:* >> >> *(4) To avoid doubt, a reference to proceedings relating to a contravention by an employer of a civil remedy provision in paragraph (1) (a) includes proceedings dealt with as small claims proceedings under section 548.* > > *(5) Schedule 5, page 82 (before line 3), before item 36, insert:* > >> *36A Subsection 357(1)* >> >> *Omit "(1)".* >> >> *36B Subsection 357(1) (note)* >> >> *Omit "subsection", substitute "section".* >> >> *36C Subsection 357(2)* >> >> *Repeal the subsection.* > > *(6) Schedule 5, item 39, page 82 (lines 9 and 10), omit the item, substitute:* > >> *39 Subsection 539(2) (before table item 12)* >> >> *Insert:* > > *(7) Schedule 5, items 43 and 44, page 84 (lines 15 to 29), omit the items, substitute:* > >> *43 After subsection 27(1A)* >> >> *Insert:* >> >> *(1B) Section 26 does not apply to:* >> >> *(a) a law of a State or Territory providing for an employer, or an officer, employee or agent of an employer, to be liable to be prosecuted for an offence relating to underpaying an employee an amount payable to the employee in relation to the performance of work; or* >> >> *(b) a law of a State or Territory providing for an employer, — 2021-03-18, Senate: negative, ayes 32, noes 32
- The same number of senators voted for and against a [motion](https://www.openaustralia.org.au/senate/?gid=2021-03-18.46.1) that: > *subsection 546(3A) in item 4 and subsection 548D(7) in item 10 of [schedule 5](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=LEGISLATION;id=legislation%2Fbills%2Fr6653_first-reps%2F0005;query=Id%3A%22legislation%2Fbills%2Fr6653_first-reps%2F0000%22;rec=0) stand as printed* In other words, the same number of senators voted for and against those provisions remaining as they are. Because a majority was not reached, the motion failed and those provisions will be removed from the bill. According to the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2021a/21bd053): > *Proposed subsection 546(3A) provides that any penalty based on the new ‘value of the benefit’ method outlined above may only be payable to the Commonwealth. The Explanatory Memorandum contains no rationale as to why this is the case.* — 2021-03-18, Senate: negative, ayes 32, noes 32
- The same number of senators voted for and against a [motion](https://www.openaustralia.org.au/senate/?gid=2021-03-18.50.1) that: > *[schedule 5](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=LEGISLATION;id=legislation%2Fbills%2Fr6653_first-reps%2F0005;query=Id%3A%22legislation%2Fbills%2Fr6653_first-reps%2F0000%22;rec=0) and [division 6 of schedule 7](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=LEGISLATION;id=legislation%2Fbills%2Fr6653_first-reps%2F0007;query=Id%3A%22legislation%2Fbills%2Fr6653_first-reps%2F0000%22;rec=0#4c0a8a88be29455aaaddb1d30b912cb3) stand as printed* In other words, the same number of senators voted for and against those provisions remaining as they are. Because a majority was not reached, the motion failed and those provisions will be removed from the bill. The provisions related to compliance and enforcement - read more about them in the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2021a/21bd053#_Toc66866288). — 2021-03-18, Senate: negative, ayes 32, noes 32
- The majority voted in favour of [Government amendments (1) to (8)](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Famend%2Fr6653_amend_98946f9f-5a6c-4b1a-b241-78f861da66bf%22;rec=0), which relate to compliance and enforcement and the small claims procedure. Learn more about what this bill does in its [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2021a/21bd053). — 2021-03-18, Senate: affirmative, ayes 34, noes 30
- The majority voted in favour of a [motion](https://www.openaustralia.org.au/senate/?gid=2021-03-18.55.1) to keep unchanged [subsection 66C(2)]( https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=LEGISLATION;id=legislation%2Fbills%2Fr6653_first-reps%2F0001;query=Id%3A%22legislation%2Fbills%2Fr6653_first-reps%2F0000%22;rec=0) in item 3 of schedule 1 and [subclauses 46(1) to (4)]( https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=LEGISLATION;id=legislation%2Fbills%2Fr6653_first-reps%2F0007;query=Id%3A%22legislation%2Fbills%2Fr6653_first-reps%2F0000%22;rec=0) in item 1 of schedule 7. In parliamentary jargon, they voted that those parts “*stand as printed*”. These parts relate to when employers are not required to offer casual conversion and the application of certain provisions. — 2021-03-18, Senate: affirmative, ayes 33, noes 31
- The same number of senators voted for and against [amendments no. (1), (3) to (6) and (8) to (11)](https://www.openaustralia.org.au/senate/?gid=2021-03-18.55.1), which means they failed. They were introduced by South Australian Senator [Penny Wong](https://theyvoteforyou.org.au/people/senate/sa/penny_wong) (Labor). ### Amendment text > *(1) Schedule 1, item 2, page 4 (line 9) to page 5 (line 18), omit section 15A, substitute:* > >> *15A Meaning of casual employee* >> >> *(1) A person is a casual employee of an employer if the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person.* >> >> *(2) For the purposes of subsection (1), in determining whether the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had to the following considerations:* >> >>> *(a) whether the employer can elect to offer work and whether the person can elect to accept or reject work;* >>> >>> *(b) whether the person will work only as required;* >>> >>> *(c) whether the employment is described as casual employment;* >>> >>> *(d) whether the person will be entitled to a casual loading or a specific rate of pay payable only to casual employees under the terms of a fair work instrument;* >>> >>> *(e) the pattern of hours that is worked, or scheduled by the employer to be worked, by the person.* >>> >>> *Note: Under Division 4A of Part 2-2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full-time employment or part-time employment.* >> >> *(3) To avoid doubt, regard may also be had to considerations other than those referred to in subsection (2).* > > *(3) Schedule 1, item 3, page 7 (before line 27), before subsection 66C(3), insert:* > >> *(2 — 2021-03-18, Senate: negative, ayes 32, noes 32
- The majority voted in favour of a [motion](https://www.openaustralia.org.au/senate/?gid=2021-03-18.59.1) “*that schedule 1 stand as printed.*” In other words, they voted in favour of keeping schedule 1 unchanged. According to the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2021a/21bd053), “*Schedule 1 makes amendments to insert a definition of casual employment, provide for a casual conversion process and to address issues around ‘double dipping’ with respect to casual loading*”. — 2021-03-18, Senate: affirmative, ayes 33, noes 31
- The majority voted in favour of an [amendment](https://www.openaustralia.org.au/senate/?gid=2021-03-18.63.1) introduced by Queensland Senator [Malcolm Roberts](https://theyvoteforyou.org.au/people/senate/queensland/malcolm_roberts) (One Nation), which means it passed. ### Amendment text > *(1) Clause 2, page 2 (table item 1), omit "Sections 1 to 3", substitute "Sections 1 to 4".* > > *(2) Page 3 (after line 11), after clause 3, add:* > >> *4 Review of operation of amendments* >> >> *(1) The Minister must cause a review to be conducted of the operation of the amendments made by this Act.* >> >> *(2) Without limiting the matters that may be considered when conducting the review, the review must:* >> >>> *(a) consider whether the operation of the amendments made by this Act is appropriate and effective in the context of Australia's changing employment and economic conditions; and* >>> >>> *(b) identify any unintended consequences of the amendments made by this Act; and* >>> >>> *(c) consider whether amendments to the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, or any other legislation, are necessary to:* >>> >>>> *(i) improve the operation of the amendments made by this Act under paragraph (a); or* >>>> >>>> *(ii) rectify any unintended consequences identified under paragraph (b).* >>> >>> *(3) The review must start as soon as practicable after the end of 12 months after this section commences.* >>> >>> *(4) The persons who conduct the review must give the Minister a written report of the review within 6 months of the commencement of the review.* >>> >>> *(5) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.* — 2021-03-18, Senate: affirmative, ayes 36, noes 32
- The majority voted in favour of [amendments](https://www.openaustralia.org.au/senate/?gid=2021-03-18.65.1) introduced by Queensland Senator [Malcolm Robert](https://theyvoteforyou.org.au/people/senate/queensland/malcolm_roberts) (One Nation), which means they passed. They related to small business employers. ### Amendment text > *(1) Schedule 1, item 2, page 4 (line 24), omit paragraph 15A(2)(b), substitute:* > >> *(b) whether the person will work as required according to the needs of the employer;* > > *(2) Schedule 1, item 3, page 6 (before line 2), before section 66B, insert:* > >> *66AA Subdivision does not apply to small business employers* > >> *This Subdivision does not apply in relation to an employer that is a small business employer.* > > *(3) Schedule 1, item 3, page 9 (line 27), before "the request", insert "if the employer is not a small business employer—".* > > *(4) Schedule 1, item 3, page 9 (after line 28), at the end of subsection 66F(1), add:* > >> *Note: Nothing in this Subdivision prevents an employee from requesting to convert to full-time or part-time employment outside the provisions of this Division, or prevents an employer from granting such a request.* > > *(5) Schedule 1, item 5, page 14 (after line 26), after paragraph 125A(2)(d), insert:* > >> *(da) casual conversion entitlements of casual employees employed by small business employers;* > > *(6) Schedule 1, item 6, page 16 (line 14), omit "such a term", substitute "a term of the fair work instrument or contract of employment under which the loading amount is paid".* > > *(7) Schedule 7, item 1, page 96 (line 2), after "employer", insert "(other than a small business employer)".* > > *(8) Schedule 7, item 1, page 96 (line 17), after "employer", insert "(other than a small business employer)".* > > *(9) Schedule 7, item 1, page 97 (after line 18), after clause 47, insert:* > >> *47A Casual employees of small business employers* >> >> *(1) This clause applies in relation to an employee an — 2021-03-18, Senate: affirmative, ayes 35, noes 32
- The same number of senators voted for and against the [amendment](https://www.openaustralia.org.au/senate/?gid=2021-03-18.71.1) introduced by SA Senator [Stirling Griff](https://theyvoteforyou.org.au/people/senate/sa/stirling_griff) (Centre Alliance), which means it failed. ### Amendment text > *(7) [Schedule 7](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=LEGISLATION;id=legislation%2Fbills%2Fr6653_first-reps%2F0007;query=Id%3A%22legislation%2Fbills%2Fr6653_first-reps%2F0000%22;rec=0), item 1, page 95 (after line 19), after subclause 46(7), insert:* >> *(7A) However, despite subclause (7), section 545A of the amended Act does not apply in relation to entitlements that accrue, or loading amounts paid, before commencement if an application has been made before 18 March 2021 to a court for the court to determine a claim in respect of the entitlements or amounts.* ### What is section 545A? According to the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2021a/21bd053), section 545A was introduced in order to address concerns around ‘double dipping.’ It applies when: > * *an employee is engaged as a casual employee and is paid an identifiable loading amount to compensate for not receiving relevant entitlements during their employment period and* > * *is subsequently found not to be a casual employee during the employment period and makes a claim for their entitlements.* > > *In these circumstances a court, when making orders in relation to the claim, must reduce any amount payable by the employer to the person for the relevant entitlements by the loading amount, however the amount payable must not be below zero.* — 2021-03-18, Senate: negative, ayes 34, noes 34
- The majority voted in favour of a [motion](https://www.openaustralia.org.au/senate/?id=2021-03-18.75.1) "*that the remaining stages of the bill be agreed to and the bill be now passed with an amendment to the title.*" In other words, they voted to give it a [third reading](https://peo.gov.au/understand-our-parliament/how-parliament-works/bills-and-laws/making-a-law-in-the-australian-parliament/) and so pass the bill in the Senate. The bill will now be sent back to the House of Representatives. If our MPs agree with the Senate amendments, then the bill will become law. ### What does this bill do? According to the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2021a/21bd053): > *The Bill’s proposed reforms primarily relate to casual employment, flexibility under modern awards for industries impacted by COVID-19, the making and approval of enterprise bargaining agreements, greenfield agreements for major projects and compliance and enforcement (including responding to wage theft). The Bill’s amendments can be grouped as follows:* > > * *Schedule 1 makes amendments to insert a definition of casual employment, provide for a casual conversion process and to address issues around ‘double dipping’ with respect to casual loading* > * *Schedule 2 makes amendments providing that employers covered by identified modern awards can offer additional hours to part-time employees and issue flexible work directions to employees* > * *Schedule 3 makes amendments to the current requirements around enterprise agreements including in relation to the operation of the Better Off Overall Test (BOOT) and agreement approval processes* > * *Schedule 4 make amendments to allow eight year greenfields agreement for major projects* > * *Schedule 5 makes amendments in relation to compliance and enforcement including by introducing new penalties and criminalising certain forms of wage theft* > * *Schedule 6 makes amendments in relation to when the FWC [Fair Work C — 2021-03-18, Senate: affirmative, ayes 35, noes 33
- The majority voted in favour of *disagreeing* with [amendments](https://www.openaustralia.org.au/debate/?id=2021-03-22.28.1) introduced by Watson MP [Tony Burke](https://theyvoteforyou.org.au/people/representatives/watson/tony_burke) (Labor), which means they failed. MP Burke [explained](https://www.openaustralia.org.au/debate/?id=2021-03-22.28.1) that the purpose of these amendments is to: > *bring those wage-theft provisions back into this bill. They do two things. They bring back those provisions, and they make sure that we act on the criminalisation of wage theft.* — 2021-03-22, House of Representatives: affirmative, ayes 64, noes 61
- The majority voted to agree with the [Senate amendments](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Fsched%2Fr6653_sched_802e6841-c720-44d5-b02e-2e20bb710a2e%22;rec=0), which means the bill has now passed in this form in both the Senate and the House of Representatives and so will now become law. ### What does this bill do? According to the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2021a/21bd053): > *The Bill’s proposed reforms primarily relate to casual employment, flexibility under modern awards for industries impacted by COVID-19, the making and approval of enterprise bargaining agreements, greenfield agreements for major projects and compliance and enforcement (including responding to wage theft). The Bill’s amendments can be grouped as follows:* > > * *Schedule 1 makes amendments to insert a definition of casual employment, provide for a casual conversion process and to address issues around ‘double dipping’ with respect to casual loading* > * *Schedule 2 makes amendments providing that employers covered by identified modern awards can offer additional hours to part-time employees and issue flexible work directions to employees* [*] > * *Schedule 3 makes amendments to the current requirements around enterprise agreements including in relation to the operation of the Better Off Overall Test (BOOT) and agreement approval processes* [*] > * *Schedule 4 make amendments to allow eight year greenfields agreement for major projects* [*] > * *Schedule 5 makes amendments in relation to compliance and enforcement including by introducing new penalties and criminalising certain forms of wage theft* [*] > * *Schedule 6 makes amendments in relation to when the FWC [Fair Work Commission] can dismiss applications and vary or revoke its own decisions.* [*] > * *Schedule 7 provides for relevant application, saving and transitional provisions with r — 2021-03-22, House of Representatives: affirmative, ayes 64, noes 61
Plain-language summary
Written by a model from the explanatory memorandum; not the record, as at 2020-12-09.
This bill would change the Fair Work Act 2009 and related laws to help Australia recover from the COVID-19 pandemic.
It would introduce a legal definition of a casual employee, add a casual conversion right to the National Employment Standards, and extend temporary JobKeeper flexibilities for two years.
The explanatory memorandum says the bill would also require the Fair Work Commission to approve enterprise agreements within 21 working days where practicable.
- Introduces a statutory definition of casual employee.
- Creates a right for regular casual employees to request conversion to permanent employment.
- Extends temporary JobKeeper flexibilities for two years for employers in identified industries.
- Streamlines the enterprise agreement approval process.
- Strengthens compliance and enforcement frameworks for wage underpayments.
- Sunsets pre-Fair Work Act agreements by 1 July 2022.
Employers, employees, unions, and the Fair Work Commission.
Sources
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