More amendments to the Fair Work Act – Closing Loopholes

Written by: George Haros, Will Marshall and Lauren Chappill, Gadens

On 4 September 2023, the Federal Government introduced the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Bill), its third tranche of Industrial Relation reform in the last 12 months following the passing of the Secure Jobs, Better Pay and the Same Job, Same Pay amendments to the Fair Work Act 2009 (Cth) (Act).

Parliament will not consider the Bill until after 1 February 2024. This delay will be welcome news to businesses that are inundated with significant workplace change.

We set out below a summary of the proposed amendments. We anticipate further changes ahead of the amendments being introduced.

Definition of casual employee

Amending the definition of casual employee to implement a legislative response to High Court decisions.

Definition of employment

Amending the definition of employment to revert to requiring consideration of the totality of the employment relationship, in response to High Court decisions.

Small business redundancy exemption

The small business redundancy exemption will no longer apply in circumstances where a business has downsized to fewer than 15 staff due to insolvency like events.

Labour hire changes

Allowing employees and employee organisations to apply to the Fair Work Commission for an order that would require the labour hire provider to pay their employees no less than what they would be entitled to if they were directly employed by the host.

Sham arrangements

Amending the sham-contracting provisions to make it more difficult for employers to defend claims.

Wage theft

Introducing a new federal criminal offence for wage theft.

Gig-economy

Empowering the Fair Work Commission to set minimum standards for ‘employeelike’ workers and to deal with disputes. This is intended to capture workers such as ride share drivers.

Strengthening protections against discrimination

Including being subjected to, or continuing to be, subjected to family and domestic violence as a protected attribute.

Model terms and modern awards

Amending the model terms and Modern Awards through various means.

Bargaining changes

Adjusting the recently amended bargaining framework.

Workplace delegates’ rights

Introducing a framework for workplace delegates’ rights.

Work health and safety changes

Introducing a new federal industrial manslaughter offence, increasing penalties and addressing silica disease and first responders PTSD.

For more in-depth information please see the following link to the article regarding these changes on Gadens' website. We will continue to keep businesses updated on any changes to the Bill as it progresses through parliament.