From 26 August 2024, the second part of the Closing Loopholes bill introduces significant updates to Fair Work legislation. The changes detailed in Part 2 of the bill are wide-ranging and complex, so it is critical that business owners are across them. In addition to key changes covering off casual employment and the right to disconnect, the following amendments will also come into effect.

Enhancing delegates’ rights

This will provide workplace delegates, and the work they do, with specific rights and protections, and determine that:

  • Workplace delegates are employees or employees appointed as workplace representatives under their union rules.
  • Specific rights will be given to workplace delegates to represent the industrial interests of union members and potential members in disputes.
  • Employees can choose to be represented by workplace delegates.
  • Employees will have reasonable access to representation to address safety and compliance issues.
  • Delegates in non-small businesses will have reasonable access to paid time for related training.
  • General protections will apply to workplace delegates when they are conducting duties associated with their role. These protections include preventing an employer from unreasonable refusal to deal with workplace delegates, as well as misleading, hindering, and obstructing their rights.

Minimum standards for ‘employee-like’ workers

This will allow the Fair Work Commission (FWC) to set minimum standards for employees who are in ‘employee-like’ forms of work such as those engaged in the gig economy performing certain types of work, and cover off the following:

  • The changes will affect those who are ‘’employee-like workers’’ performing digital platform work and regulated road transport contractors engaged in the road transport industry.
  • ‘Employee-like’ workers are defined as employees with low bargaining power, low authority over work performance, and remuneration that is at or below the rate received by other employees with comparable duties, and any other characteristics prescribed by the regulations.
  • The Commissioner can now make, vary, and revoke minimum standards orders and minimum standards guidelines for regulated workers, road transport contractual chain orders and guidelines, and the registration of collective agreements for regulated employees and regulated businesses.
  • The minimum standards orders come in two forms:
    • Employee-like worker minimum standards orders, setting standards for employee-like workers performing digital platform work (including in the road transport industry), and road transport minimum standards orders, setting standards for regulated road transport contractors.
    • If an employee-like worker feels they have been unfairly deactivated by a digital labour platform, they can access an ‘unfair deactivation’ dispute resolution process through the FWC.

Independent contractors

This will allow the FWC to resolve disputes between certain independent contractors and principals about unfair terms in service contracts. If the FWC does deem a contract term to be unfair, it will have the power to change the terms and make parts of the contract or the whole contract ineffective. The new provisions outline that:

  • These changes will be accessible to independent contractors who earn below a high-income threshold.
  • The Commission will consider a variety of relevant factors including the relative bargaining power of the parties and whether the specific term is reasonably necessary for the protection of the parties’ legitimate interests.
  • Independent contractors earning above the high-income threshold can refer to the Independent Contractors Act 2006 for solutions to unfair contract terms.

Definition of employment

A new interpretive principle will be introduced when determining whether a person is an ‘employer’ or an ‘employee’ under the Act. This will mean that the practical reality of the employment relationship will be considered as well as the contracts governing the relationship. These changes will mean that:

  • The Fair Work Act 2009 will include new definitions of ‘employee’ and ‘employer’.
  • Most workers and businesses that operate within the terms of the Fair Work Act 2009 will come under these changes.
  • Those who will not be affected by these changes include national system employees and national system employers.
  • Those who earn above a regulated high-income threshold can ‘opt-out’ of the new interpretive principle.
  • Fairer tests will apply when determining whether a person is an employee or an independent contractor, or a person is an employer or principal.

These amendments mark a shift in Australia’s employment laws, emphasising the importance of employee safety and the need for businesses to adapt to these changes. Staying compliant requires more than a superficial understanding of the new laws, it necessitates practical tools and strategies that empower employees and employers.

If you have any questions or need assistance implementing the upcoming changes, get in touch with our team today. We are here to help you navigate these changes and ensure your business is fully prepared.

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