The Fair Work Ombudsman is urging employers across Australia to comply with the new Closing Loopholes workplace laws.
Most changes have already started on December 15, 2023, with others commencing between now and 2025.
Those already commenced include equal pay for labour hires and new discrimination protections, with the criminalisation of intentional wage underpayments expected to take effect after January 1, 2025.
“We urge workplace participants to be across the changes which create new or different rights or responsibilities,” Fair Work Ombudsman Anna Booth said.
“There can be significant penalties where the laws are not followed – including jail time for the new criminal offence – but we want employers to get it right in the first place and are here to help with free information and advice to ensure they do.”
Regarding the new criminal offence, employers may commit an offence if they owe money to an employee under the Fair Work Act or an industrial instrument - such as an Award or an enterprise agreement - and intentionally engage in conduct that results in a failure to pay on or before the money is due. This can include failure to make required superannuation contributions, FWO stated.
A Voluntary Small Business Wage Compliance Code will be established before the changes take effect, and compliance with this Code means a small business won’t be prosecuted if they underpay their employees.
Companies prosecuted face penalties three-times the amount of the underpayment, if a court can determine it, or $7.825 million, whichever is greater. If the court can’t determine the underpayment, the maximum penalty is $7.825 million.
Individuals can be imprisoned for up to 10 years; be fined either three-times the amount of the underpayment, if the court can determine it, or up to $1.565 million, whichever is greater; or be both fined and imprisoned.
“Employers should know – these laws don’t apply to those who unintentionally underpay their employees or pay the wrong amount by mistake,” Booth said.
The Fair Work Ombudsman will investigate suspected criminal underpayment offences once the offence takes effect in 2025.
Meanwhile, from December 15, employees, unions and host employers can apply to the Fair Work Commission (FWC) for a regulated labour hire arrangement order. The FWO stated that when such an order is in effect, employers will be required to pay labour hire employees the same as employees who are employed directly by the host employer.
Under an order, they must be paid at least what they would receive under a host employer’s enterprise agreement, a workplace determination, an equivalent public sector determination and other prescribed instruments made under Commonwealth, State and Territory Laws.
Any orders made by the FWC under these rules won’t come into effect before November 1, 2024.
The FWC can’t make an order if it’s not fair and reasonable, according to the FWO. A number of exclusions may also apply, such as for host employers who are a small business. The FWC can hear disputes about an order that can’t be resolved within the workplace.
Also from December, employers cannot discriminate by taking adverse action against employees because they have been subjected to family and domestic violence.
Awards and enterprise agreements must also not include terms that discriminate against an employee because they're experiencing, or have experienced, family and domestic violence.
More information can be found on the Fair Work Ombudsman website.