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  • HR Heartbeat: Loopholes closed by Royal Assent, non-compete clause concerns, and...

HR Heartbeat: Loopholes closed by Royal Assent, non-compete clause concerns, and...

See the changes coming through the Closing Loopholes legislation, how the CBA has been caught in the underpayment act, and an alleged misconduct incident that was missing necessary context.

First published on Wednesday, Feb 28, 2024

Last updated on Thursday, Feb 29, 2024

7 min read

Have you heard the latest news?

Everything you need to know about the latest trends impacting employers all over Australia. Keep up to date with the HR Heartbeat.

Let’s get into the headlines.

Closing Loophole gets Royal Assent

Following the Australian Federal Parliament passing the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023, the Bill received Royal Assent on February 26, 2024.

What does that mean? Well, some of the Closing Loopholes changes have already kicked in and become the law.

Starting from 27 February 2024 to 2025, changes will be rolled out. Here’s a peek at some of those upcoming changes…

From 27 February 2024 there will be:

  • Penalties for failing to comply with compliance notices will double
  • Changes to the defence for sham contracting
  • New threshold for serious contraventions

From 26 August 2024 (or an earlier date set by the Government) there will be:

  • New definitions of both ‘employee’ and ‘employer’
  • Changes to casual employment
  • Eligible employees gain the right to disconnect (not applicable to small business owners)

From 1 January 2025 (no earlier than this date) there will be:

  • New rules criminalise intentional wage underpayments

From 26 August 2025 there will be:

  • Right to disconnect rules commence for small business employers

This is just an overview of some of the changes coming your way. Make sure you’re staying on top of all the changes that apply to your business with 24/7, up-to-date advice from a team of employment relations advisers.

Learn more about our BrightAdvice service if you’re not already a client.

Be-clause of you

Concerns about the negative impact of non-compete clauses have risen from the Australian Government’s 2023 Employment Whitepaper. These concerns include the effects these clauses have on innovation, job mobility, and wage growth.

The Treasury has launched a Competition Review to understand the impact these clauses have on the labour market and the economy, as well as to explore potential reforms in response.

Research has shown that up to one-fifth of Australian workers are subjected to non-compete clauses across several sectors. These clauses can:

  • Create uncertainty around how they can be enforced
  • Discourage job changes
  • Affect competition
  • Impact wages
  • Hinder innovation
  • And have an adverse impact on productivity

The Treasury will seek public input on reform topics as part of the two-year Competition Review with stakeholders currently being consulted to gather perspectives on non-compete clauses in the nation.

Completing your HR documentation requirements, including your employment contracts, promptly and compliantly can take hours out of your work week. BrightBase offers an extensive library of HR document templates to help you halve your HR admin time.

Breaking the (Commonwealth) Bank

The Commonwealth Bank of Australia (CBA) and its subsidiary CommSec have been fined for underpaying their staff members.

These penalties were issued alongside the CBA and CommSec owning up to repeatedly violating the Fair Work Act—including a few intentional, systematic breaches.

A lack of necessary checks resulted in Enterprise Agreements and Individual Flexibility Arrangements being incorrectly implemented. This serves as a reminder that a corporate culture of negativity towards compliance can result in legal action and long-lasting reputational damage.

Fair Work Ombudsman, Anna Booth, expressed disappointment saying that a well-resourced corporate employer to hold such a negative attitude towards paying their employees fairly is unacceptable.

Keeping your business and payroll up to date is critical. Tools like our Payroll Navigator can help you generate custom timesheet reports, supported by our 24/7 experienced employment relations advice line.

Triangle of misconduct

An alleged misconduct triangle involving three employees has led to the Fair Work Commission finding that TAFE NSW failed to critically consider the context of their policies and operations at the time the allegations took place.

The allegations were made initially in early 2021, claiming that Mr. Kildey was not qualified to teach plumbing and had been improperly engaged by Mr. Browne. Then it was also alleged that Ms. Kerr who is both Mr. Browne’s de-facto partner and Mr. Kildey’s aunt was involved in the latter’s engagement.

A law firm headed an investigation that spanned nearly two and a half years and ended in their recommendation that all three employees be terminated because of their involvement in fraudulent or dishonest conduct and failure to declare conflicts of interest.

The FWC, however, found that the allegations against Mr. Kildey and Mr. Browne were unsubstantiated, while Ms. Kerr’s misconduct stemming from her failure to report a potential conflict of interest was not serious enough to add up to dishonesty or corruption, let alone justify her termination.

What’s the takeaway for businesses leaning on external investigation reports? These reports should be considered a helping hand and shouldn’t simply be executed blindly by any business.

That wraps up this edition of HR Heartbeat. Stay tuned for more headlines and all the latest updates that will keep you in the know with all the major employment changes coming your way.

If you’ve got questions about the top HR headlines from this week, ask BrightLightning:

What is casual employment Australia?

Casual employment under the national system is defined in the Fair Work Act. It refers to an arrangement where an employer offers, and the employee accepts, employment with no firm advance commitment to continuing and indefinite work according to an agreed pattern of work. Casual employment has certain features, including that an employer can choose to offer or not offer work, the employee can choose to accept or reject shifts, the employee works according to the needs of the employer, and the employee receives a casual loading in place of statutory leave entitlements.

What should I include on the letter to notify my employee that we underpaid them?

If you have underpaid an employee, it is important to meet with them as soon as possible to discuss the issue/s and rectify this. Notifying the employee in writing is the best first step in this process. In the letter you should identify that an error has been made which has resulted in an underpayment and that you wish to meet at an organised time to discuss the issue/s and you intend to rectify it as soon as possible.

What is serious misconduct?

Serious misconduct is defined in the Fair Work Act. It is defined as wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment or conduct that causes serious and imminent risk to the health or safety of a person, or the reputation, viability, or profitability of the employer's business. Examples include if the employee commits crimes while at work, is intoxicated at work, or refuses to follow lawful and reasonable directions while at work

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