In what was the first HR Breakfast Club of 2024, John Wilson, Legal Director of the Employment Law & Investigations team at BAL Lawyers engaged in a lively discussion regarding the recent and upcoming changes to the Fair Work Act 2009 (‘FWA’), specifically:
- Fair Work Legislation Amendment (Closing Loopoles) Act 2023
- Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023
- Fair Work Amendment (Right to Disconnect) Bill 2023
Fair Work Legislation Amendment (Closing Loopholes) Act 2023
Some of the key changes in this amendment which were discussed include:
1. The Labour Hire Arrangements
- Commencing on 1 November 2024, under this new arrangement employees, unions and host employees can apply to the FWC for an order requiring labour hire employees to be paid at least what they would receive under an enterprise agreement of equivalent public sector determination.
- There are various exceptions to this, and the FWC is ultimately empowered to resolve disputes in relation to labour hire arrangements if it cannot be resolved at the workplace level.
2. Criminalising Intentional Wage Theft
- Commencing on 1 January 2025, criminal penalties will now apply to employees who have intentionally engaged in conduct that results in a failure to pay the required amount of pay to an employee on or before the day when that amount is due for payment.
Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023
This second tranche of the closing loopholes bill passed both Houses of Parliament in late February and is currently awaiting Royal Assent, which is a formality. Some of the significant changes include:
1. Employment definition
- Whether an individual is an employee is to be determined by ascertaining the real substance, practical reality, and true nature of the relationship.
2. Casual employment definition
- An employee will only be considered a casual employee when:
a) The employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and
(b) The employee would be entitled to a casual loading.
- Even where a contract provides that there is no firm advance commitment to ongoing and indefinite work, a commitment may be inferred from the conduct of the employer and employee. There are a range of factors to be considered when deciding whether there is a firm advance commitment.
3. Other changes to casual employment
- Casual employees will be able to initiate a change to their employment status provided they satisfy certain criteria.
- Provisions prohibiting employers from misrepresenting permanent employment as casual employment or vice-versa.
4. Other changes
- Regulations have been introduced setting minimum standards guidelines for ‘Gig economy’ contractors.
Fair Work Amendment (Right to Disconnect) Bill 2023
- This novel workplace right will prevent employees from being punished for refusing to take unreasonable work calls or answer emails in their unpaid personal time. Employees may raise a complaint about intrusive calls or expectations they must respond to work emails.
- If this matter cannot be resolved internally the FWC has the power to make orders regarding these disputes, which may include issuing stop orders to employers, or determining that the contact is considered reasonable.
Our next HR Breakfast Club will be held on 15 March 2024 and will largely focus on the controversial new Right to Disconnect laws. We look forward to seeing you there.
If you are a HR professional in the ACT and would like to attend future HR Breakfast Club forums, visit our monthly forum page and register to attend. If you have any questions or queries about a debt an employee owes you, a debt your employer alleges you owe, please contact the BAL Lawyers Employment Law & Investigations team on 02 6274 0999. For more information, see the Fair Work Ombudsman’s website.
