21st February 2024

Fair Work Legislation Amendment (Closing Loopholes No.2) Bill 2023


On September 4, 2023, the Albanese Government introduced the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (CL Bill), building on previous changes made by the 'Secure Jobs Better Pay' legislation in 2022. Getting enough support for the CL Bill was tough, leading to negotiations and splitting the bill into two parts.

The first part became the Fair Work Legislation Amendment (Closing Loopholes) Act 2023, which included changes like fair pay for labour hire workers, addressing wage theft, and more.

Now, a second bill, the Fair Work Legislation Amendment (Closing Loopholes No 2) Bill 2023, has been passed, with new additions like the 'right to disconnect' when away from work.


As we anticipate the finalisation of the amendments and their approval by royal assent, let's delve into some of the significant changes expected from this legislative update:


The Right to Disconnect

The Act introduces the 'right to disconnect' during non-working hours, influenced by similar laws in Europe and other regions. Employees can refuse to respond to work-related messages or calls outside their work time, unless it's unreasonable. Factors like the reason for contact, disruption caused, compensation for being available, and personal circumstances will be considered. Disputes over this right will first be addressed at the workplace level, with the option to involve the Fair Work Commission if needed. Failure to comply may result in penalties or legal action.


Casual Employment

Changes to casual employment aim to clarify who qualifies as a casual worker. The focus is on the nature of the job, not just the contract terms. A new process allows casuals to request permanent roles after a certain period. However, employers can reject this based on operational needs. The requirement for casual employment statements and prohibitions on sham casual arrangements remain.


Definition of Employee

A new section will define employment status based on the actual work relationship, not just the contract terms. Employers misclassifying workers may face penalties unless they can prove they reasonably believed the worker was an independent contractor.


Regulated Work in Transport and Digital Platforms

The regulations for work in transport and digital platforms have been expanded with detailed amendments, including setting minimum standards, negotiating collective agreements, and addressing unfair loss of work. Special provisions aim to prevent abuses in contractual arrangements.


Unfair Contract Terms

A new provision allows contractors earning above a certain threshold to challenge unfair contract terms, shifting jurisdiction from the federal court to the Fair Work Commission.


Enterprise Agreement-Making

Changes allow multiple franchisees to make a single agreement and replace existing agreements under certain conditions. The Fair Work Commission will manage model terms.


Intractable Bargaining

The FWC has new powers to resolve long-running disputes through arbitration, with measures to prevent employers from rolling back conditions.


Increases to Civil Penalties and Serious Contraventions

Penalties for breaches of the FW Act have been increased, particularly for serious violations like wage theft.


Compliance Notices and Union Rights

Changes to compliance notices and union entry rights have been adopted, with penalties for non-compliance.


Other Reforms

Additional changes include provisions for union dis-amalgamations and long service leave in coal mining.


As these legislative changes loom on the horizon, it's crucial for businesses to stay ahead of the curve and ensure compliance with the evolving IT laws. At Standard Candle HR, we're here to help navigate these complexities and provide expert guidance every step of the way. Reach out to us at Standard Candle HR today to learn how we can assist you to take proactive steps now to prepare your organisation and stay compliant in the changing landscape of Australian IR laws.


Book your complimentary session with Kirsten Jowsey to learn more about the amendments to the Fair Work Legislation. Call 1300 620 100 or email kirsten@standardcandlehr.com.au.
Fair Work Legislation Amendment (Closing Loopholes No.2) Bill 2023

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