Member ALERT || Closing Loopholes Bill update

Things have moved quickly this week on the Closing Loopholes Bill. The Senate Inquiry report was released late last week (summary below) with a big success for APSCo (and Cornerstone) lobbying in having the following key amendments included amongst those Pocock has asked the Government to make:
•    a high income exclusion from the current NES requirement for an employer to notify a casual employee of their conversion right after 12 months (Rec 3 at p155)
•    amendments to the proposed/changed definition of “casual employee” to increase certainty and avoid adverse consequences (Rec 5 referring to amendments on p153)
•    removing proposed change to definition of “employee” so that we don’t return to the uncertain pre-Jamsek position. Pocock has alternatively suggested delaying the start date of this change to 1 July 2025 and making clear it doesn’t apply to existing contracts (Rec 8 at p156-7).
As you may have seen reported in media, the Government is keen to push through the Closing Loopholes Bill in this first week of Parliament for 2024 but is in intense negotiation with the cross bench. With Senator Thorpe’s support shored up, the Government now only needs Senator Pocock (noting the Lambie party will support the above Pocock amendments and doesn’t consider conversion notification necessary for any casual, irrespective of income). How hard Pocock is willing to push, and what the Government offers him as part of negotiation, will now largely determine which amendments (above and below) get up.
 
In that context we are cautiously optimistic on the high-income exclusion amendment given conversations with Senator Pocock’s office this week indicating this amendment “appears” to be sorted with Government but is still subject to confirmation. It should be kept in mind, however, that this amendment (unlike others such as removing change to the employee definition) is, while supported by Pocock, not one that he is going to hold up passage over. If agreed by Government it is likely to be put through as the Government’s own amendment (versus Pocock’s).
 
Other notable amendments 
Other notable amendments and takeout's from the Senate Inquiry report are as follows (noting these are the ones most relevant to APSCo, not a summary of all):
 
Committee Recommendations
The Bill should be amended to:
•    Add a right to disconnect (Rec 2). As outlined previously this was always going to be a Greens trading point. Pocock has said he will not support this amendment unless:
 - it is released for public consultation and includes safeguards to prevent it being used vexatiously (Rec 15 at p160) and
 - resources are allocated for guidance to small business on the right (Rec 16 at p161).

There is not enough time for the Government to do this now and our conversations with Senator Cash yesterday indicate that the Opposition and cross bench are likely to unanimously call for this to go to an inquiry and not be passed as part of the Bill. It is difficult to see the Greens withholding support for the rest of the Bill unless this is passed. For further detail and analysis on this right see p57-58 and p159-161 for the Committee and Pocock analysis respectively.
•    Avoid duplicated/overlapping state legislation (Rec 3 at p58)
Lambie party dissenting report
Senator Lambie made no specific recommendations indicating further scrutiny of the Bill is needed. As above, she is essentially taking the lead from Pocock on many areas and will support his amendments relevant to APSCo.
 
Pocock additional comments 
On top of the three at top of this update (a focus of our advocacy), further amendments Pocock has called for to secure his support for the Bill are:
•    Harmonising criteria and processes for employee and employer led casual conversion pathways- noting the employer preference to have one 12-month conversion pathway (Rec 2 at p154)
•    Additional right for an employer to refuse casual conversion on fair and reasonable grounds (Rec 4 at p155)
•    Removing adverse unintended consequences for recruiters of temporary casuals with a specified end date by remove cl 15A(4) or limiting its application (Rec 6 and p155 analysis around not inadvertently preventing the continuation of on hire recruitment)
 
Thank you,
APSCo Australia