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Federal IR Reform – Update

Remainder of Closing Loopholes Bill Passed Parliament

The remainder of the Federal Government’s controversial Fair Work Amendment (Closing Loopholes) Bill 2023 (the Bill), including “intractable bargaining” provisions and changes to casual employment, has passed Parliament. However, in the Government’s rush to pass the Greens’ “right to disconnect” laws, an additional amendment will be needed before the laws come into effect in about six months.

Key Changes

The changes to the amended Bill (No. 2) that have passed include:

  • Intractable Bargaining Workplace Determinations whereby the Fair Work Commission (FWC) can intervene in a deadlocked dispute between a union and an employer. Intractable Bargaining Workplace Determinations establishes the terms and conditions of employment in place of an enterprise agreement. The FWC may make an intractable bargaining declaration if:
    • it is after the end of the minimum bargaining period;
    • the FWC is satisfied that:
      • it has dealt with the dispute about the agreement under section 240 of the FW Act and the applicant participated in this process;
      • there is no reasonable prospect of agreement being reached if the FWC does not make the declaration;
      • it is reasonable in all the circumstances to make the declaration, taking into account the views of all of the bargaining representatives;
  • narrowing the definition of casual employment and implementing anti-avoidance provisions with significant financial penalties;
  • creating a new definition of “employment” which will make it more difficult to differentiate between contractors and employees;
  • minimum standards for “employee-like” forms of work in the gig economy and the road transport industry; and
  • developing a single national framework for labour hire regulation.

Additional Changes

Other changes include:

  • franchisees’ access to single-enterprise bargaining;
  • transitioning from multi-EAs;
  • model terms for EAs;
  • union delegate rights for independent contractors;
  • sham arrangements;
  • right of entry;
  • civil penalties;
  • compliance notices; and
  • withdrawals from amalgamations of RO’s.

Right to Disconnect

The “right to disconnect” refers to a new workplace right for employees “to disconnect” and not respond to their employer after or outside work hours. Specifically, the two rights for employees include: 

  • an employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable; and 
  • an employee may refuse to monitor, read or respond to contact, or attempted contact, from a third party if the contact or attempted contact relates to their work and is outside of the employee’s working hours unless the refusal is unreasonable. 

                                                                                                                                                                              The “right to disconnect” laws, which would legally prevent employers from contacting their staff outside of office hours, will require another vote after the Government failed to include the amendment in the. that employers will not be found to be criminally liable if they contravene a FWC right to disconnect order.

ACCI Advocacy to Improve the Bill

The Australian Chamber of Commerce and Industry (ACCI) which CCIWA is part of, has advocated successfully to implement a number of improvements to the Bill that will be implemented into the new laws.

These improvements relevantly include:

  • A clearer definition of casual employment that will provide more certainty to employers.
  • Providing businesses with the ability to provide ‘fair and reasonable grounds’ to decline a casual employee’s request to convert to permanent employment.
  • Repealing the existing requirement on businesses to offer conversion and providing a single legislated pathway for casuals to convert to permanent employment. reducing the administrative burden on employers.

                                                                                                                                                                      Narrowing of the definition of ‘employee-like’, ensuring that tradespersons and independent small businesses are less likely to be captured by a minimum standards order.

Written By Michael Franzone – Associate, Workplace Consulting

CCIWA, Business Law WA and REEFWA has taken all reasonable care in preparing this document. The contents of this document do not constitute legal advice and should not be relied upon as such. Specific advice for your situation should be sought from CCIWA, Business Law WA or a professional adviser before any action is taken. Neither REEFWA, CCIWA nor Business Law WA accept responsibility for any claim that arises from any person acting or refraining from acting on the information contained in this document.

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