On Monday, 4 September 2023, the Labor Government introduced the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (“the Bill”) into Parliament.

The Bill proposes amendments to the Fair Work Act 2009 (Cth) that aim to further safeguard pay and conditions for employees and employee-like workers.  Government guidance on some of the key changes under the proposed legislation is summarised below including:

Criminalising wage theft

Under the proposed legislation, employers who deliberately underpay staff will face up to 10 years jail and fines of up to $7.8 million or three times the amount of the underpayment.

Introducing minimum standards for workers in the gig economy

The proposed legislation will empower the Fair Work Commission (“FWC”) to set binding minimum standards for “employee-like” workers performing digital platform work.  The amendments would also introduce a consent-based collective agreements framework and access to dispute resolution for unfair deactivation from a digital labour platform.

New casual employee definition

The proposed legislation will amend the definition of casual employee in section 15A of the FW Act.  It will retain the established concept that a casual employee is someone who has no firm advance commitment to continuing and indefinite work.  The existing definition explicitly requires the assessment if an employee is casual to be based only on the initial offer of employment.  The amended definition will allow consideration of the practical reality of engagement.  There will be considerations to help employees and employers assess whether there is no firm advance commitment including, but not limited to:

  • the ability and actual practice of offering and accepting work;
  • whether continuing work is reasonably likely given the nature of the business;
  • whether part-time or full-time employees are undertaking similar roles; and
  • whether the employee has a regular pattern of work.

In addition to having no firm advance commitment to continuing and indefinite work, to be a casual an employee must also be entitled to a casual loading or specific rate of pay for casuals.

The definition also includes that employees engaged as casual employees remain so until an event occurs, underpinned by employee choice, to change their status.

Closing the labour hire loophole

The proposed legislation will allow employees, unions and host employers to apply to the FWC for an order that labour hire employees must be paid at least what they would receive under a host’s enterprise agreement or equivalent public sector determination.

Right to Challenge Unfair Contractual Terms

The proposed legislation will establish a new low cost, flexible and informal jurisdiction in the FWC for resolving disputes between independent contractors (who earn below a threshold) and principles about unfair contract terms in services contracts.

To view the Bill, click on the link below.

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