In December 2023, the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 was divided into two Bills

The passage of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 and the Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024 (Closing Loopholes No. 2 Act) has brought significant reforms to the Fair Work Act 2009 (Act).
Some reforms have already commenced, while others will take effect between now and 2025. A summary of key reforms taking effect in 2024 is provided below.

Entry Permits and Delegates Rights
From 1 July 2024, the Fair Work Commission (FWC) can grant an exemption certificate waiving the 24 hour notice period for an entry permit, if the FWC is satisfied of a suspected underpayment and that an investigation may be hindered by the advance notice. Conditions can be imposed on exemption certificates if misused (in addition to revocation or suspension).
Additionally, terms relating to delegates rights, such as reasonable communication with members, will be included in modern awards and enterprise agreements.

Penalties
From 27 February 2024, the amendments increase penalties and change the concept of ‘serious contravention’.
A ‘serious contravention’ now occurs if a person knowingly contravened the provision or was reckless as to whether the contravention of the provision would occur. It is no longer required for the contravention to be part of a systematic pattern of conduct.

Casual Employment
From 26 August 2024, the definition of ‘casual employee’ will change. The new definition considers the totality of the employment relationship, rather than solely the terms of the initial offer and acceptance of employment. This is a significant shift from the current definition and precedent set by the High Court in the WorkPac v Rossato [2021] HCA 23.
Under the new definition, an employee will be a casual employee if the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and the employee would be entitled to a casual loading or a specific rate of pay for casual employees, either under an industrial instrument or an employment contract.
Assessing whether there is a firm advance commitment to continuing an indefinite work includes consideration of:
• the real substance, practical reality, and true nature of the employment relationship;
• whether there is an inability of the employer to offer work or not, or an inability of the employee to accept or reject work (and whether this occurs in practice);
• whether, having regard to the nature of the employer’s enterprise, there will likely be future availability of continuing work usually performed by the employee;
• whether permanent employees perform the same kind of work; and
• whether there is a regular pattern of work for the employee.
A firm advance commitment can be in the form of a contract or a mutual understanding or expectation.
Employers are prohibited from dismissing and re-engaging employees to perform the same (or substantially the same) work as casuals and from making false statements to persuade non-casual or former employees to work as casuals. These provisions carry civil penalties.
Employees engaged as casual employees remain so until a specified event occurs (for example, they transition to permanent employment under the casual conversion provisions or otherwise accept a permanent employment offer).

Casual Conversion
An employee can notify their employer in writing if they believe they are no longer a casual employee after six months of employment (or 12 months for small businesses). The employer must consult with the employee and respond within 21 days. The FWC can resolve disputes in this area.

CEIS
Currently, casual employees must receive a Casual Employment Information Statement (CEIS) on commencing employment. From 26 August 2024, casual employees, except for those in small businesses, must also receive a CEIS six months after commencing employment and every 12 months thereafter.

Employment Definition
From 26 August 2024 (or earlier proclamation), whether a person is an ‘employee’ or ‘employer’ for the purpose of the Act will be determined by ascertaining the ‘real substance, practical reality and true nature of the relationship’ between the parties. This assessment will consider the totality of the relationship including the contract terms governing the relationship and other factors relating to the employment relationship, including how the contract is performed in practice.
The intention of this change is to return to the ‘multi factorial’ assessment applied by courts and tribunals before the High Court of Australia’s decisions in February 2022 in s [2022] HCA 2.
Individuals earning above the contractor high-income threshold can give notice to opt out, which can be revoked by the individual.

Right to Disconnect
From 24 August 2024 (24 August 2025 for a small business), employees may refuse to monitor, read, or respond to contact or attempted contact from their employer (or a third party where the contact or attempted contact relates to their work) outside the employee’s working hours, unless such refusal is deemed unreasonable.
Factors to be considered include the reason for the contact, how it is made and level of disruption, the employee’s role and responsibility, compensation for availability, and personal circumstances, such as family or caring responsibilities. It is unreasonable to refuse contact required under a Federal, State or Territory law.
The employer and the employee must attempt to resolve any right to disconnect dispute. If unresolved, the FWC has authority to issue orders preventing unreasonable out-of-hours contact.

Other Reforms
This article contains a brief summary of some of the key proposed changes. However, the Closing Loopholes No. 2 Act contains a range of other proposed changes including in relation to enterprise agreements, independent contractors in the road transport industry and employee-like workers performing digital platform work (gig economy). For further advice, contact Employer Assist.

AAAA Member Benefits
Employer Assist provides advice on all aspects of employment law. Please contact Employer Assist by Industry Legal Group on 1300 735 306 or aaaa@employerassist.com.au if you have any questions relating to this article or to discuss any employment issues that arise in your business.

This article is intended for information purposes only and should not be regarded as legal advice. Please contact Employer Assist by Industry Legal Group for advice.
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