Closing Loopholes Bill No. 2 passes Parliament

Earlier this month, it was confirmed that both Houses of Parliament passed the second tranche of amendments to the Fair Work Act 2009 (Cth) under the Albanese Government’s Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Bill), with amendments as proposed by the Senate last week.   

We will update our Fair Work Amendment ‘Closing Loopholes’ Act 2023 Factsheet to reflect these changes and will ensure our members are informed about its publication date. 

It is expected that the Bill could receive Royal Assent later this week.   

The key amendments that will come into effect after the Bill receives Royal Assent are:  

• Casual Employment: The Bill will abolish the existing obligation on businesses to offer casual conversion and will instead empower casual employees that perform regular shifts to request permanency after 6 months of employment. Although, employers may still decline an employee’s request to move to permanent employment on fair and reasonable business grounds.  

In addition, the Bill amends the definition of casual employment. An employee will be considered a casual where the employment relationship is characterised by an absence of a firm commitment to continuing and indefinite work and receive a casual loading. The Bill contains several indicia to determine whether there is an absence of a commitment to continuing and indefinite work, including what is contained in the employment contract, the real substance of the working relationship, whether other people are performing the same work on a full or part-time basis, and whether the employee has a regular pattern of work.  

  * Measures pertaining to casual employment will commence 6 months after Royal Assent.  

• Right to Disconnect: The Bill will prevent employers from making unreasonable out-of-hours contact with employees. Employees can no longer be disciplined for failing to respond to out-of-hours correspondence from their employer, unless such contact relates to changes in their rostered hours, or they’re paid to be on call. If disputes cannot be resolved, employees can apply to the Fair Work Commission for an order to stop unreasonable out-of-hours contact.   

* For large businesses, the right to disconnect will commence 6 months after Royal Assent.   

* For small businesses, the right to disconnect will commence 12 months after Royal Assent.  

• Gig Workers: Under the Bill, ‘gig workers’ (such as individuals who work for digital ride share and food delivery platforms like Uber and Doordash) will now be empowered to apply to the Fair Work Commission for orders on minimum standards with respect to payment rates and terms, insurance, superannuation, and protection from unfair de-activation from the platform.  

* Measures pertaining to gig workers will commence 6 months after Royal Assent.   

• Road Transport Workers: Under the Bill, the Fair Work Commission will be granted powers to, among other things, develop minimum standard guidelines for the road transport industry, provide remedies for unfair termination of service contracts for road transport contractors and deal with disputes between participants, including independent contractors.  

* Measures pertaining to road transport workers will commence 6 months after Royal Assent.   

• Right of Entry: The Bill will allow the Fair Work Commission to grant an exemption certificate where they are satisfied a suspected contravention involves the underpayment of wages or other entitlements. As a result, permit holders (e.g. union delegates) will be entitled to enter a workplace without providing 24 hours’ notice where they represent an employee who is employed at the premises and who they suspect is being underpaid.    

  * Measures pertaining to right of entry will commence on 1 July 2023.  

• Enterprise Bargaining: The Bill will amend enterprise bargaining by enabling multiple franchisees of the same franchisor to make a single-enterprise agreement whilst retaining the ability to make a multi-enterprise agreement if that is their preference.  

  * Measures pertaining to enterprise bargaining will commence the day after Royal Assent.  

Should you have any questions about how these amendments may affect your business, please call our Workplace Relations Hotline on 1800 RETAIL (738 245).     

In the meantime, if you have questions about how these amendments may affect your business, please call our Workplace Relations Hotline on 1800 RETAIL (738 245).