Closing Loopholes: Recent Changes to the Fair Work Act

Welcome to another episode of our podcast (listen here).

It’s a new year and and a new season for our podcast, and speaking of new there has already been a lot of attention in the media about new employment legislation that will be phased in over the remainder of 2024.

In a significant move to strengthen workplace laws and protect employee rights, the Australian Government has introduced the ‘Closing Loopholes‘ laws, resulting in key amendments to the Fair Work Act. These changes, which began rolling out on 15 December 2023, are designed to address various aspects of employment law, with more alterations set to take effect this year and in 2025.

Key Changes Under the New Laws:

1. Labour Hire Worker Rules: New regulations have been introduced to ensure fair treatment and rights for labour hire workers. This means effective 15 December 2023, a labour hire worker has the right to be paid the same amount of pay as a traditional employee would. 
2. Discrimination Protections: Enhanced protections are now in place for employees who experience family and domestic violence, safeguarding their rights and wellbeing in the workplace. This is also already in place, effective 15 December 2023.
3. Small Business Redundancy Rules: As it stands right now, if you are a small business employer (less than 15 staff), you aren’t required to pay redundancy pay when you terminate employment because of redundancy. The changes, that already commenced on 15 Dec 2023, prevent an organisation from downsizing and avoiding having to pay redundancy pay because they classify themselves as a small business after downsizing.
4. Workplace Delegate Rights: The laws strengthen the rights of workplace delegates, ensuring they can effectively represent and support their fellow employees.
5. Right of Entry Rules: Amendments have been made to the rules governing the right of entry to workplaces, affecting how union officials and other representatives access work sites.
6. Right to Disconnect: Coming into effect 26 August 2024 (26 August 2025 for small business employers), employees will have the right to refuse work-related contact outside their working hours unless that refusal is unreasonable. This means the employee can refuse to monitor, read or respond to calls, voicemails, emails, texts etc. from an employer or a third party (e.g. customer/client, supplier, co-worker etc.).
7. Criminalisation of Wage Theft: A critical change is the criminalisation of intentional underpayment of wages. This significant measure, set to start no earlier than 1 January 2025, aims to deter wage theft and protect employees from exploitation. Intentional underpayment of wages by employers will become a criminal offence. Penalties can apply to both the company and the individual (i.e. Business Owner).
8. Changes to Casual Employment: Also coming into effect 26 August 2024, a new definition of ‘casual employee’ will be introduced to the Fair Work Act. Under this definition, an employee is only a Casual if there isn’t a firm advance commitment to continuing and indefinite work (taking into account a number of factors) and they’re entitled to receive a casual loading or specific casual pay rate. There are also changes to an employee’s right to transfer from Casual to Permanent including changes to eligibility regarding length of employment and if their employment no longer meets the new definition of Casual.

The Fair Work Ombudsman is in the process of updating their website with detailed information, tools, and resources to reflect these changes. While these updates are underway, employers and employees can get a comprehensive summary of these changes at the Closing Loopholes: Fair Work Act changes page and this PDF.

The ‘Closing Loopholes’ laws mark a significant step in enhancing fairness and transparency in Australian workplaces. These amendments to the Fair Work Act reflect a concerted effort to close gaps in existing legislation, offering greater protection and clarity for both employers and employees. As these changes are implemented, staying informed and adaptable is key to navigating this evolving legal landscape successfully.

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Additional Resources
Visit our resources page for more detailed information and resources. For more comprehensive insights, you can also find earlier episodes that delve into topics mentioned in today’s discussion.

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