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Fair Work Updates: 'Closing the Labour Hire Loophole'

anti-discrimination australian capital territory casual conversion employee rights fair work family and domestic violence hr compliance industrial action minimum entitlements modern awards new south wales northern territory protected attributes queensland secure jobs better pay south australia tasmania victoria western australia Oct 19, 2023

The Fair Work Act 2009 is set to undergo another round of amendments thanks to the Fair Work Amendment (Closing Loopholes) Bill 2023, which was introduced on 4 September 2023. These changes follow the various amendments that were introduced under the passing of the Secure Jobs, Better Pay, and Same Job, Same Pay amendments.

Proposed changes were introduced to the following:

  • Casual Employment:
    • A new definition of casual employment
    • A casual conversion framework
    • Anti-avoidance provisions and dispute resolution
    • The requirement to provide the casual employment information statement after 12 months of approaching
  • Labour Hire:
    • Aims to ensure workers who perform the same job alongside each other at a host's workplace receive the same pay
  • Enterprise Bargaining:
    • Changes to how single-enterprise agreements and multi-enterprise agreements operate 
  • Model Terms:
    • Empowering the FWC to determine the model terms for enterprise agreements
    • The promotion of changes that favor working conditions and collective bargaining
  • Workplace Delegates' Rights:
    • Introduction of new positive workplace rights and protections for workplace delegates
  • Exemption Certificates for Suspected Underpayments:
    • In the instance that providing 24 hours' notice of a suspected underpayment could result in the Employer destroying evidence, the FWC will waive the 24 hours notice period
  • Strengthening Protections against Discrimination:
    • Family and Domestic Violence will now be classified as a general protection 
  • Penalties for Civil Remedies Provisions:
    • Proposals to lower the threshold for what constitutes "serious contravention."
  • Criminalising Wage Theft:
    • Introducing a new criminal offense for wage theft for intentional misconduct regarding employee wages.
    • A significant increase in the penalties applied
  • Sham Arrangements:
    • Placing the responsibility on the employer to prove that when the representation was made, the Employer "reasonably believed" that the contract was a contract for services.
  • Definition of Employment:
    • Introducing a new ordinary meaning of employment that outlines the relationship between the Employer and employee
  • Provisions Relating to Regulated Workers:
    • Increased protections for workers within the road transport industry and "employee like" workers performing digital platform work
  • Work Health and Safety:
    • Introduction of a new industrial manslaughter offense with penalties reaching up to $18 million and 25 years imprisonment.
    • Proposal of an increase of 39.03% to all other penalties within the WHS Act


These changes represent a significant shift in how we identify contractors and employees and will require businesses, especially those who employ a large number of casual staff, to assess their structures and processes moving forward. 


Please note these are proposed reviews and no changes have been confirmed as yet. Ensure to subscribe to be kept in the loop!


If you'd like to discuss how these proposed changes could impact your business or have any other questions about HR matters, please reach out to the team at [email protected]


Author: Chelsea Finlay (HR Officer).