New Workplace Laws – Closing Loopholes changes
New workplace laws as part of the Closing Loopholes changes. These changes recently received Royal Assent after passing the Australian Parliament in February.
The changes substantially increase the penalties which a court can order for non-compliance with a range of workplace laws, by up to five times for non-small business employers.
Effective 27 February 2024 there were new sham contracting rules among other things such as civil penalties and serious contraventions, changes to enterprise agreements and the bargaining process, compliance notice measures and demergers of registered organisations. With regard to the sham contracting, the defence to misrepresenting employment as an independent contractor arrangement (ie sham contracting) changes from a test that the employer did not know and was not reckless as to the type of contract to one of ‘reasonably believed ‘it was an independent contracting arrangement.
Effective 1st July 2024 unions for example can apply for an exemption to waive the 24 hours notice requirement for entry to investigate suspected underpayments and the Commonwealth Work Health & Safety Act will be amended to introduce a new criminal offence for industrial manslaughter and significantly increase penalties for other offences.
Effective 26 August 2024 changes to casual employment and right to disconnect (for non-small business); new formal definition of employment (employee and employer), minimum standards orders in gig economy workers in the road transport industry and additional workplace delegates rights. To elaborate on some of these;
- The definition for a casual employee will be replaced and an employee will be a casual only if; there isn’t a firm advance commitment to continuing an indefinite work, factoring in the real substance, practical reality and true nature of the employment relationship, and the employee is entitled to be paid a casual loading or a specific pay rate for casuals. The rules for casual conversion will be changed and new rules against dismissing or threatening to dismiss employees to engage them as a casual and making certain misrepresentations in relation to casual employment.
- The right to disconnect (for non-small businesses) where eligible employees will have the right to disconnect outside of work hours, employees will have the right to refuse to monitor, read or respond to contact from an employer outside their working hours unless that refusal is unreasonable and rules will apply when determining whether an employees refusal is unreasonable or not. Refer to recent blog based on information so far.
- New definitions for employee will be added into the Fair Work Act with some exceptions. When determining whether a worker is an employee or an independent contractor consideration must be given to the real substance, practical reality and true nature of the relationship as a whole including the contract and how the contract is performed in practice.
Effective 1st November 2024 labour hire orders made by the Commission come into effect.
By Jan 1st 2025, criminalisation of intentional wage underpayments, excluding small businesses under voluntary compliance code and further updates to civil penalties for wage underpayments.
Effective 26th August, 2025 the right to disconnect legislation will come into effect for small business employers.
More detailed information will come closer to the effective date.