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Outline of “Same Job, Same Pay” proposal released

The Department of Employment and Workplace Relations (DEWR) has released details of the ‘Same Job, Same Pay’ proposal, outlining new measures to apply to labour hire arrangements. The proposal provides for equal pay of labour hire workers where they are determined to be conducting the same work as a directly engaged employee.

The suggested criteria to determine the circumstances where equal pay will apply, relate to when a labour hire worker is performing the same duties carried out by employees operating under an enterprise agreement or covered by a modern award. Effectively, unless the labour hire worker’s pay is higher, they would be entitled to the same pay as employees who are completing the same job.

The proposal also suggests amending the Fair Work Act 2009 (Cth) (FW Act) to provide labour hire workers a direct entitlement to receive “at least the same pay as directly engaged employees” and to provide a “positive obligation on labour hire providers and host employers to take reasonable steps to ensure the direct entitlement is paid to the labour hire worker”.

Details of the proposed measures can be found in the DWER’s ‘Same Job, Same Pay’ consultation paper.


FWC Clarifies what is counted as ‘earnings’ under FW Act

The Fair Work Commission (FWC) has found that an employee can bring an unfair dismissal claim as once-yearly employer payments to reduce fringe benefits tax (FBT) liability are not earnings under the FW Act.

The employee received a salary and the use of a motor vehicle for both employment purposes and private use. The Employee elected to salary sacrifice to purchase a vehicle of his own to use for work related purposes and made additional weekly payments for the more expensive model. The employer the made an annual single salary adjustment to ‘take into account the fringe benefits taxable value of the motor vehicle’.

When the employee was later dismissed and brought an unfair dismissal claim, the employer asserted that his annual earnings were above the high-income threshold when including the salary adjustments on account of FBT. However, the FWC found that as ‘a matter of administration, FBT is payable by the employer’ that the FBT salary adjustments did not count as earnings.

David Paul Lonnie v WA Council on Addictions Incorporated [2023] FWC 673

In a similar matter an employee was found to be protected by unfair dismissal and under the high-income threshold. In calculating the employee’s salary, the employer sought to include pay increases for working overtime hours during shutdown periods, which was not guaranteed work.

However, the FWC found that the higher pay for shutdowns ‘constituted the payment of amounts which cannot be determined in advance’ and are excluded as earnings under the FW Act, allowing the employee to bring the claim.

Brian Cowan v I.P.C. Pty Ltd [2023] FWC 514

Government commits to criminalising wage underpayments

The DEWR has released a consultation paper outlining the government’s proposed measures to criminalise wage underpayment and record keeping misconduct. An earlier Migrant Workers’ Taskforce found current measures and penalties under the FW Act for wage underpayments were not effectively deterring such conduct and that between 2021-2022 the Fair Work Ombudsman recovered more than $500,000,000 ‘of underpayments for nearly 385,000 workers’ indicating non-compliance is extensive and ‘requires stronger deterrence through stronger penalties’.

While some States and Territories have already criminalised wage theft (in Queensland gaol terms of up to 10 years can apply for example), the federal government is proposing to criminalise wage underpayments and record keeping under the federal FW Act. Other measures proposed include increasing the maximum penalties for civil remedy provisions under the FW Act for wage exploitation, and reinforcing safeguards against sham contracting arrangements.

The government aims to introduce the legislation later this year.

Criminalising wage theft consultation paper


Workplace Gender Equality Reporting Obligations

The Workplace Gender Equality Amendment (Closing the Gender Pay Gap) Act 2023 (Cth) (WGEA Act) has introduced a number of new reporting obligations for public and private sector employers of 100 employees or more.

The reforms will come into effect later this year and will impose additional reporting requirements on employers, including an obligation for employers to submit their Workplace Gender Equality Agency (WGEA) Executive Summary Report and Industry Benchmark Report to their board. From early 2024, the WGEA will publish private sector employer pay gaps, whereas previously the WGEA only reported on industry gender pay gaps.

Details on the upcoming changes to reporting obligations can be found at the Workplace Gender Equality Agency.


We hope you have enjoyed this fortnight’s employment law news. See you next fortnight!

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