Employers started 2023 looking at a range of significant changes to the Fair Work Act (the Act) and amendments continued to be made throughout the year. The most recent changes arise from Closing Loopholes Bills 2023, which was passed in two tranches.

The first Bill struggled to get the required support and a reduced version was passed as the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 following assent on 14 December 2023.

This contained changes relating to:

• same job, same pay for labour hire workers
• workplace delegates’ rights for employees and expanded right of entry rules for unions
• non-attendance at protected action conferences
• small business redundancy exemption
• wage theft (already part of Victorian state legislation)
• discrimination protections for family and domestic violence
• amendments to the Asbestos Safety and Eradication Agency Act 2013, the Safety, Rehabilitation and Compensation Act 1988 and the Work Health and Safety Act 2011.

A second Bill, the Fair Work Legislation Amendment (Closing Loopholes No 2) Bill 2023 was approved in heavily amended form by both Houses earlier this month. After receiving royal assent, it is expected to become the Fair Work Legislation Amendment (Closing Loopholes No 2) Act 2024. This amendment contains:

• definitions of employees and employers
• ‘employee-like workers’ and road transport contractors
• rights for casual workers
• extended FWC powers for bargaining
• protections for independent contractors
• establishment of a statutory right to disconnect.

Employers should be aware that there are different timeframes for implementation relating to some of these provisions. Some of the most significant changes for Victorian employers are:

Casual employment and ‘employee-like’ contractors

The legislative definition of a casual employee now requires that practical reality of the true employment relationship is considered, rather than just the contractual agreement.

The ability of casual employees to make a request to change their employment status is expanded, however employers are no longer required to make determinations after each 12-month employment period.

Similarly, a personal service worker will be determined by “real substance, practical reality and true nature of the working relationship”. Defences to sham contracting are reduced, as the test will be whether they ‘reasonably believed’ that the individual was a contractor (rather than an employee). It will also be a civil remedy offence to misrepresent employment as casual.

Employee-like workers (gig economy workers on digital platforms) will be able to access certain employment protections and provisions.

These changes will come into effect six months after Royal Assent.

Right to disconnect

Employees will have the right to refuse unreasonable contact outside of working hours, and a right to apply to the Fair Work Commission (FWC) for an order stopping the unreasonable behaviour. A range of factors as to whether that contact is reasonable is contained in the Act, with similar considerations around public holiday refusals and requests. This change will come into effect six months after Royal Assent.

New rules for labour hire workers

Employees, unions and host employers can apply to the FWC for orders relating to labour hire employees. When an order applies, labour hire employees working for a particular host employer must be paid the same rate of pay they would receive under that employer’s enterprise agreement (or other relevant workplace instrument), subject to certain rules. This change came into effect on 15 December 2023. However, regulated labour hire arrangement orders cannot come into force until 1 November 2024.

Compulsory conciliation conferences changes in protected action ballot matters and Intractable Bargaining Disputes

Protected action ballot orders can be made by the FWC in relation to industrial action over a proposed enterprise agreement. Where an order for industrial action is made, the bargaining representatives must attend a conciliation conference.

The Commission already held powers to make bargaining declarations to resolve disputes. A new provision will contain that other than in respect of wage increases and agreed terms, terms must not be less favourable to employees or employee organisations than corresponding terms in existing enterprise agreements. This change came into effect on 15 December 2023.

New discrimination protections

Stronger protections against discrimination for employees experiencing family and domestic violence have been introduced. This change came into effect on 15 December 2023.

Small business redundancy exemption changes

A non-small business employer can become a small business employer due to insolvency in the period leading up to (or after) becoming bankrupt or going into liquidation. Under the new legislation, employers that become a small business employer in these circumstances may still be required to pay their employees redundancy pay, even though small businesses are usually not required to pay redundancy pay. A small business employer is an employer with less than 15 employees at a particular time. This change came into effect on 15 December 2023.

New workplace delegates’ rights and protections

Workplace delegates now have new rights and protections under the Act. This includes the right to represent the industrial interests of union members and potential members. This change came into effect on 15 December 2023.

Right of entry changes

The requirement for officials assisting a state or territory work health and safety representative to hold an entry permit under the Act has been removed. Certain rules and safeguards that apply to permit holders will still apply to those officials. This change came into effect on 15 December 2023.

Small Business Wage Compliance Code

A Voluntary Small Business Wage Compliance Code (Voluntary Code) will be established. Compliance with the Voluntary Code means a small business won’t be criminally prosecuted if they underpay their employees. The offence will commence on the later of 1 January 2025, or the day after the Voluntary Small Business Wage Compliance Code is first declared by the Minister for Employment and Workplace Relations.

How can the Victorian Chamber help

The Victorian Chamber’s Workplace Relations Advice Line offers general advice on a wide range of workplace issues, including award and enterprise agreement interpretation, and can assist if you have questions. Call the Victorian Chamber Workplace Relations Advice Line on 03 8662 5222.

We will shortly be communicating arrangements for our next round of Fair Work Act update briefings, to be held in a range of locations across Victoria between 27 March and 23 May. Our experts will talk you through the changes, and what this may mean for your business. Guides are also being prepared to assist employers in implementing and navigating these changes.