A range of employment law experts share some of the key legislation changes HR needs to be aware of in 2024 – from changes to wage theft laws and gender reporting requirements to new ways to engage with casual workers.

This year will bring another flurry of legislative changes as the government continues to execute its election promise to overhaul aspects of Australia’s traditional workforce practices. 

Part one of the Closing Loopholes Bill passed the Senate on 7 December 2023, and part two passed the senate last week, which included provisions for a right to disconnect and a right to work from home.

There’s plenty more for employers and HR professionals to wrap their heads around, so HRM asked four employment law experts to share their top changes to keep on your radar.

1. New wage theft laws

By Michael Byrnes, Partner, Swaab

In just under a year, by 1 January 2025, employers could face fines of up to $7.8 million and 10 years in jail for deliberate acts of wage underpayment. The new legislation will also include provisions for the underpayment of superannuation.

Even though I suspect there won’t be many prosecutions, the fact that employers face the possibility of criminal penalties, including imprisonment, will certainly focus the minds of employers on ensuring they’re compliant in terms of their payment obligations.

Importantly, if your business is currently on notice for underpayment – even if in this instance it was accidental – and doesn’t remedy this by the time the new legislation is effective in 2025, that could be deemed a deliberate act of underpayment and could be punishable under this new law.

Even though most employers should already have robust processes in place to manage payroll compliance, I suggest HR and employers treat this as a warning to double down on compliance.

Consider:

• Ensuring you have compliance measures in place to identify which industrial instrument applies to an employee’s role.
• Checking that employee classifications are accurate.
• Implementing sound record-keeping processes.
• Ensuring you’ve remedied any existing, historical underpayment notices before
  the new legislation is enacted.

Read more about the changes here.

2. Casual workforce changes

By Nick Ruskin, Partner K&L Gates and member of AHRI’s Industrial Relations Advisory Panel

Editor’s note: The changes to casual workers rights was passed by the Senate but will need to be returned to the House of Representatives for amendments before being passed into law (the same goes for the right to disconnect and the right to work from home).

The Closing Loopholes Bill will retain some of the existing definition of a ‘casual worker’, characterised by an absence of a commitment to continued and indefinite work, and where an employee is entitled to casual loading. However, the Bill introduces further indicia for interpreting this definition which look at, among other factors, “the real substance, practical reality and true nature of the employment relationship”.

It also states that an employee is not a casual worker if their contract includes a term that states their employment terminates at the end of an identifiable period, unless it’s for seasonal work, or relates to the completion of a shift of work to which the contract relates.

This means that if the employer engages workers as casuals, they will remain casual unless their employment is changed or converted to permanent part-time or full-time work. This can occur by agreement, a term of an award or enterprise agreement, or from a Fair Work Commission order. Importantly, the employee’s status can’t be changed retrospectively.

Potential other changes:

• Providing that no single factor will be determinative of casual status. 
• Clarifying that it’s possible to be a casual worker with a wholly regular pattern of work and still not have a firm advance commitment to work.

Employers will still be able to engage casuals so long as they carefully do so in close compliance with these changes.

Even though most employers should already have robust processes in place to manage payroll compliance, I suggest HR and employers treat this as a warning to double down on compliance. – Michael Byrnes, Partner, Swaab

3. Family and Domestic Violence

By Sarah Queenan, Managing Director, Humanify HR and member of AHRI’s Industrial Relations Advisory Panel

One in five Australians have experienced family and domestic violence (FDV). Tragically, FDV has led to more than 60 women being killed in Australia in 2023. FDV is a national crisis, and workplaces have an active role to play in supporting employees experiencing it. 

The government continues a coordinated response to eliminate FDV through the Fair Work Legislation Amendment (Closing Loopholes) Act 2023. As of 15 December 2023, new discrimination protections have been put in place that make it unlawful for an employer to take adverse action against an employee experiencing FDV.  

This builds on the reforms to the National Employment Standards last year, which added 10 days’ paid FDV leave for employees. 

The objective of these reforms is to reduce the stigma associated with FDV, raising awareness with the goal of eliminating all forms of violence and abuse.

Consider:

• Reviewing existing HR policies, contracts and enterprise agreements to ensure your industrial framework is compliant and promotes the destigmatisation of FDV.
• Educating leaders in the appropriate handling of FDV matters. It should not just be a matter for HR, as all leaders require the skills to support staff experiencing FDV. 
• Consequences for non-compliance. For example, the employer might have to defend an adverse action claim and/or reputational damage associated with such a claim.
• Raising awareness in your organisation of the impacts of FDV and providing resources, such as 1800RESPECT, that are available for all employees.

4. Gender equality reporting requirements

By Fay Calderone, Partner, Hall & Willcox

In March 2023, the Workplace Gender Equality Amendment (Closing the Gender Pay Gap) Bill 2023 was passed to amend the Workplace Gender Equality Act 2012. 

As part of the amendments, private sector employers and Commonwealth public sector organisations with 100+ employees will be required to follow these changes:

• Understand that the Workplace Gender Equality Agency (WGEA) can publish private sector employers’ gender pay gaps from 27 February 2024 and public sector gender gaps from late 2024/early 2025.
• Report on employees’ age and primary workplace location, and CEO, head of business and casual manager remuneration, as of April 2024.
• Reporting on sexual harassment and harassment on the ground of sex or discrimination will be mandatory.
• Employers with over 500 employees will also need to ensure they have specific policies and strategies for specific gender equality indicators. You can read more about that in this HRM article.

Consider:

• Advising your workforce in advance. Proactively addressing this and pointing employees to the published data shows a commitment to promoting and improving gender equality, even if it means openly confronting a gender pay gap. Transparency builds trust when coupled with accountability for actions to address it. 
• Consequences for non-compliance. For example, WGEA may name you via reports shared with the government or media. It could also mean your organisation isn’t eligible to compete for government contracts or procure Commonwealth grants.

A longer version of this article first appeared in the February/March edition of HRM Magazine, which is exclusive to AHRI members. Become an AHRI member today.