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A Bill for an Act to give Australian workers the right to same job, same pay, and for related purposes
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Registered 22 Nov 2021
Introduced HR 22 Nov 2021
Table of contents.

2019‑2020‑2021

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

Fair Work Amendment (Same Job, Same Pay) Bill 2021

 

No.      , 2021

 

(Mr Albanese)

 

 

 

A Bill for an Act to give Australian workers the right to same job, same pay, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Schedules............................................................................................ 2

Schedule 1—Amendments                                                                                                3

Fair Work Act 2009                                                                                                     3

 

 


A Bill for an Act to give Australian workers the right to same job, same pay, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act is the Fair Work Amendment (Same Job, Same Pay) Act 2021.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this Act

The day after the end of the period of 6 months beginning on the day this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

                   Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Amendments

  

Fair Work Act 2009

1  Section 12

Insert:

host: see subsection 123B(2).

labour hire business: see subsection 123B(1).

same job same pay obligation: see section 123C.

2  After paragraph 61(2)(i)

Insert:

                    (ia)  same job, same pay (Division 11A);

3  After Division 11 of Part 2‑2

Insert:

Division 11ASame job, same pay: obligations of labour hire businesses

Subdivision ADefinitions

123A  Meanings of employee and employer

                   In this Division, employee and employer have their ordinary meanings.

123B  Meanings of labour hire business and host

             (1)  A labour hire business is a person who, in the course of carrying on a business, ordinarily supplies a worker or workers to perform work for another person.

             (2)  A host is:

                     (a)  a national system employer that engages, or proposes to engage, a labour hire business to supply it with workers; or

                     (b)  a constitutional corporation, so far as each of the following conditions are met:

                              (i)  it engages, or proposes to engage, a labour hire business to supply workers to work at a workplace;

                             (ii)  work is performed at that workplace by employees of an associated entity of the corporation (the associated employees);

                            (iii)  an enterprise agreement applies to that associated entity and to the associated employees (the associated agreement);

                            (iv)  if the work performed (or to be performed) by the workers supplied (or to be supplied) by the labour hire business was instead performed by the associated employees, the associated agreement would apply to the associated employees.

123C  Meaning of same job same pay obligation

             (1)  The same job same pay obligation of a labour hire business is that it must comply with subsection (2), and (if applicable) subsection (3), in relation to each worker it supplies to another person.

             (2)  The labour hire business must provide to the worker pay and conditions which are no less favourable than those which would be required to be paid:

                     (a)  to an employee of the other person:

                              (i)  performing the duties of the worker; and

                             (ii)  working the particular hours of the worker or completing the same particular quantity of work as the worker; or

                     (b)  if the other person is a host within the meaning of paragraph 123B(2)(b)—pursuant to an associated agreement to an associated employee:

                              (i)  performing the duties of the worker; and

                             (ii)  working the particular hours of the worker or completing the same particular quantity of work as the worker.

             (3)  If the worker is a casual worker, the labour hire business must pay the worker:

                     (a)  the casual loading that would be required to be paid to an employee of the other person performing the duties of the worker; or

                     (b)  if no such loading would be required to be paid—a casual loading that at least equals the casual loading for award/agreement free employees (as applied to what would be the worker’s relevant base rate of pay under subsection (2)).

Note:          The casual loading for award/agreement free employees is set by the national minimum wage order (see section 294).

Subdivision BObligations of labour hire business

123D  Obligations of labour hire businesses

             (1)  A national system employer that is a labour hire business must comply with the same job same pay obligation.

Note:          A national system employer that contravenes subsection (1) of this section, which is a provision of the National Employment Standards, may be liable to pay a civil penalty (see section 44 and Part 4‑1).

             (2)  A constitutional corporation that is a labour hire business but is not a national system employer must comply with the same job same pay obligation.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

Subdivision CLimits on scope of this Division

123E  Limits on scope of this Division

             (1)  Subdivision B does not apply in respect of workers a labour hire business supplies to another person under a contract or arrangement if:

                     (a)  at the time the contract or arrangement is entered into, the other person (or the employer of the associated employees, if the other person is a host within the meaning of paragraph 123B(2)(b)) employs fewer than 15 employees; or

                     (b)  the other person (or the employer of the associated employees, if the other person is a host within the meaning of paragraph 123B(2)(b)) is a small business entity (within the meaning of the Income Tax Assessment Act 1997) for the income year in which the contract or arrangement is entered into.

             (2)  Subdivision B does not apply in respect of workers a labour hire business supplies to another person under a contract or arrangement if the contract or arrangement:

                     (a)  relates solely to the supply of workers to temporarily perform the role of employees who are on paid or unpaid leave for a period of 3 months or less; and

                     (b)  specifies that it terminates at the end of the relevant period of paid or unpaid leave.

             (3)  Subdivision B does not apply in respect of workers a labour hire business supplies to another person under a particular contract or arrangement if all of the following are satisfied:

                     (a)  the contract or arrangement relates solely to the supply of workers to temporarily supplement the workforce at a workplace for a period of 3 months or less;

                     (b)  the need to supplement the workforce at that workplace relates to demand for goods or services rather a deliberate reduction in workforce size;

                     (c)  Division 1 of Part 2‑7A does not apply to a host in respect of that workplace because of another contract or arrangement entered into to supply workers to the particular workforce in respect of which the need for temporary supplementation has arisen.

4  After Part 2‑7

Insert:

Part 2‑7ASame job, same pay: obligations of hosts

Division 1Obligations of hosts

306A  Engagement with labour hire businesses

                   A host:

                     (a)  must provide a labour hire business it engages with all the information that the labour hire business reasonably requires to comply with the same job same pay obligation; and

                     (b)  must not engage any labour hire business unless that business agrees, as part of its terms of engagement with the host, to comply with the same job same pay obligation; and

                     (c)  must, during the course of engagement with a labour hire business, take all reasonable steps to ensure that the labour hire business has complied and is complying with the same job same pay obligation.

Note:          This section is a civil remedy provision (see Part 4‑1).

306B  Entering into contracts or arrangements with labour hire businesses

             (1)  A host must not enter into a contract or arrangement with a labour hire business under which the host (or the employer of the associated employees, in the case of a host within the meaning of paragraph 123B(2)(b)) is prohibited from offering employment, either over a particular period or at all, to a labour hire worker supplied by the labour hire business.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

             (2)  A term of a contract or arrangement has no effect to the extent that the term contravenes subsection (1).

306C  Information concerning vacancies

                   A host must ensure that any information concerning vacancies in its enterprise that are available to its employees (or the associated employees, in the case of a host within the meaning of paragraph 123B(2)(b)) at a workplace is also available to labour hire workers who perform work at that workplace.

Note:          This section is a civil remedy provision (see Part 4‑1).

306D  Access to amenities and collective facilities

                   A host must ensure that any workers supplied to it by a labour hire business are provided with access to the same amenities and collective facilities at the workplace as the host’s direct employees (or the associated employees, in the case of a host within the meaning of paragraph 123B(2)(b)) are entitled to access at that workplace, under the same conditions.

Example 1: Amenities and collective facilities include a workplace canteen.

Example 2: A host does not contravene this section by drawing a distinction between access to bathrooms in “clean” versus “dirty” areas, but would contravene this section by drawing a distinction between access to bathrooms on the basis of direct employee versus labour hire worker status.

Note:          This section is a civil remedy provision (see Part 4‑1).

306E  Access to training

                   A host must ensure that any workers supplied to it by a labour hire business are provided with to access the same training as is offered at the workplace to the host’s direct employees (or the associated employees, in the case of a host within the meaning of paragraph 123B(2)(b)) at that workplace, under the same conditions.

Example:    Training on the operation of new equipment, or training that would provide additional skills that may be necessary for the worker to perform (in a relief capacity or otherwise) a more senior role.

Note:          This section is a civil remedy provision (see Part 4‑1).

306F  Rights over the determination of hours and location of work

                   A host must provide to any workers supplied to it by a labour hire business the same rights as a direct employee (or an associated employee, in the case of a host within the meaning of paragraph 123B(2)(b)) over the determination of hours and location of work, including, but not limited to, rights to consultation, reply and notice.

Note:          This section is a civil remedy provision (see Part 4‑1).

Division 2Limits on scope of this Part

306G  Limits on scope of this Part

             (1)  Division 1 does not apply in respect of a contract or arrangement to supply labour hire workers if:

                     (a)  at the time the contract or arrangement is entered into with the labour hire business, the host (or the employer of the associated employees, in the case of a host within the meaning of paragraph 123B(2)(b)) employs fewer than 15 employees; or

                     (b)  the host (or the employer of the associated employees, in the case of a host within the meaning of paragraph 123B(2)(b)) is a small business entity (within the meaning of the Income Tax Assessment Act 1997) for the income year in which the contract or arrangement is entered into with the labour hire business.

             (2)  Division 1 does not apply in respect of a contract or arrangement to supply labour hire workers if the contract or arrangement:

                     (a)  relates solely to the supply of workers to temporarily perform the role of employees who are on paid or unpaid leave for a period of 3 months or less; and

                     (b)  specifies that it terminates at the end of the relevant period of paid or unpaid leave.

             (3)  Division 1 does not apply in respect of a particular contract or arrangement to supply labour hire workers if the following are satisfied:

                     (a)  the contract or arrangement relates solely to the supply of workers to temporarily supplement the workforce at a workplace for a period of 3 months or less;

                     (b)  the need to supplement the workforce at that workplace relates to demand for goods or services rather a deliberate reduction in workforce size;

                     (c)  Division 1 does not otherwise apply to a host in respect of that workplace because of another contract or arrangement entered into to supply workers to the particular workforce in respect of which the need for temporary supplementation has arisen.

Division 3Miscellaneous

306H  Meanings of employee and employer

                   In this Part, employee and employer have their ordinary meanings.

5  Subsection 539(2) (after table item 5)

Insert:

 

Part 2‑2—The National Employment Standards

5AA

123D(2)

(a) an employee;

(b) an independent contractor;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

for a serious contravention—600 penalty units; or

otherwise—60 penalty units

6  Subsection 539(2) (after table item 9)

Insert:

 

Part 2‑7A—Same job, same pay: obligations of hosts

9A

306A

306B(1)

306C

306D

306E

306F

(a) an employee;

(b) an independent contractor;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

for a serious contravention—600 penalty units; or

otherwise—60 penalty units

7  After section 550

Insert:

550A  Contraventions of section 306A (obligations of hosts)

                   A host that contravenes section 306A is jointly and severally liable with the relevant labour hire business to compensate a worker for non‑compliance with a same job same pay obligation in respect of work performed for the host’s benefit.