Fair Work Legislation Amendment Act Passes

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Home > Blog > Fair Work Legislation Amendment Act Passes

As a result of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 and Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 being given royal assent in December 2023 and February 2024 respectively, a number of reforms will come into effect throughout the rest of this year which can impact both employers and employees.

Here are some of the key updates and when they are due to take effect.

From 1 July 2024:

  • Registered organisations will be able to seek exemptions to waive the notice requirements when investigating the underpayment of wages and other entitlements. Registered organisations will only be awarded the exemption certificate if the Fair Work Commission is both satisfied that there has been an underpayment of wages and that it reasonably believes the investigation into the suspected contravention of the Fair Work Act 2009 would be hindered by advance notice of entry. The amendments will also prohibit employers and occupiers from acting in an improper manner towards the registered organisation holding the permit.

From 26 August 2024:

  • Under the amendments, casual workers will have a clearer pathway to permanent work. Although the concept of a casual employee remains the same (that they are someone who has “no firm advance commitment to continuing and indefinite work”) should a casual employee seek permanent employment, they have the right to request the change of their employer and the employer will then have 21 days to respond by either accepting the request or refusing it with reasons as to why it has been refused. Acceptable reasons for refusal include that the employee still meets the definition of a casual employee and/or there are reasonable operational grounds on which to make the refusal.
  • Independent contractors will have increased rights, including the option to apply to the Fair Work Commission for dispute resolution, where unfair terms in a service contract are concerned. These rights relate to unfair terms which would be classified as a workplace relations matter had the independent contractor been an employee.
  • Under the amendments, workplace delegates will have greater general protections and specific rights to represent the industrial interests of union members (and potential members), including the provision of access to minimum standards and agreements.
  • In an effort to create a fairer test to determine whether an individual is an employee or an independent contractor, the meaning of the terms ‘employer’ and ‘employee’ have been updated. The new definitions mean that the totality of the working relationship is considered alongside any written agreement between the parties in determining the true nature of the relationship.
  • The ‘right to disconnect’ laws come into effect this August (or, for small businesses, in August 2025), meaning that employees will have the right to refuse to respond to (or read or monitor) contact from their employer or work-related third-parties outside of their work hours insofar as it is reasonable to do so. The test of whether contact outside of work hours is reasonable will be determined by factors including the reason for the contact and the means by which it is made; the seniority, duties, responsibilities and remuneration of the employee; and the employee’s personal circumstances. Should a dispute arise over the ‘right to disconnect’ laws, an attempt should be made to resolve it internally in the first instance, however, the Fair Work Commission may attempt to resolve the issue and may grant a ‘Stop Order’ which prevents the employer from unreasonably contacting the employee; or to prevent employee from unreasonably refusing contact from the employer.

From 1 November 2024:

  • Employees, unions and host employers will now be able to apply to the Fair Work Commission for an order which mandates that labour hire employees are paid at least what they would receive under the host employer’s enterprise agreement. Host employers must comply with requests made by labour hire employees to help them calculate the correct payment.

If your workplace is affected by any of these key updates and you would like advice on how to become compliant before they take effect, our experienced employment lawyers in Cairns can assist.

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