Navigating New Terrain: Closing Loopholes 2.0

On 12 February 2024 Federal Parliament passed the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023, the final Tranche of the Closing Loopholes bills. As these changes roll out, staying informed and proactive will be essential for businesses and employees alike.

Right to Disconnect:

In a move designed to impact work-life dynamics, the amendments introduce a statutory right for employees to disconnect from work communications outside of working hours. This development is intended to reshape workplace norms and expectations, empowering employees to safeguard their off-duty time without fear of reprisal.  However it ultimately rests upon questions of what is a reasonable refusal to respond to contact, which makes it ripe for uncertainty and disputation.

Employees who are remunerated for outside of hours contact will likely not experience any material change to expectations, however Employers will need to ensure clear communication and expectation setting in contracts and policies.

These changes come into effect six months after royal assent (which is yet to issue).

Casual Employment:

Adjustments to the definition of casual employment seek to revisit the true nature of the relationship, and will likely create uncertainty for Employers  through the ‘employee choice’ mechanism.

The existing employer-initiated process for casual conversion will also be replaced, and employees will instead be able to give notice that they believe the true nature of the engagement does not meet the casual definition.

Employers will need to radically change their casual engagements and be ready to respond to employee choice notifications.

These changes come into effect six months after royal assent (which is yet to issue).

Stricter Penalties for Non-Compliance:

A significant increase in civil penalties for contraventions of the Fair Work Act signals a tougher stance on wage exploitation and non-compliance. This change is expected to deter unlawful practices and promote fair treatment of workers.

These changes come into effect after royal assent (which is yet to issue).

Right of Entry for Suspected Underpayments:

The bill introduces the right for unions to apply to the Fair Work Commission for permission to enter workplaces without notice to investigate suspected underpayments.  The FWC can grant an exemption if satisfied that:

1. The giving of notice might result in the destruction, concealment or alternation of evidence of an underpayment, or
2. Advance notice of the entry would hinder an effective investigation into the suspected contravention.

This represents the most recent action in the government’s efforts to combat wage theft and underpayments.   

These changes come into effect on 1 July 2024.

Protections for ‘Employee-like’ Workers:

The Fair Work Commission gains expanded authority to regulate aspects of the road transport and digital platform sectors, including the ability to make road transport contractual chain orders. This extension of powers is consistent the government’s commitment to challenging insecure and nontraditional forms of employment impacted by advancing technologies.

The legislation introduces protections for certain independent contractors, particularly those in the gig economy and road transport industry, aiming to bridge the gap in workplace rights and entitlements.

These changes come into effect six months after royal assent (which is yet to issue).