The evolving employment relationship: key changes employers need to know

The Federal government has introduced significant amendments to the Fair Work Act 2009 (Cth) (the FW Act) through two pivotal pieces of legislation: the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) and the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth). These reforms, alongside other statutory amendments, aim to address various ALP pre-election promises relating to employment law.

Upcoming Changes

26 august 2024

• A statutory definition of 'employee' introduced for the first time, significantly impacting the law around independent contractors.
• Changes to the 'casual employment' definition and the law around conversion, which means employees are now able to initiate conversion process.
• Introduction of a new workplace right, being a 'right to disconnect'.
• FWC now empowered to offer remedies to independent contractors if their service contracts contain unfair terms.
• Regulated businesses, including digital labour platform operators and road transport companies, must collaborate with workplace delegates. This includes refraining from making false or misleading statements and not obstructing or hindering the exercise of delegate rights.
• Minimum standard orders introduced for regulated workers, protecting their 'workplace relations matters' such as remuneration, leave, hours of work, and agreements.
• Protections against unfair deactivation or termination of regulated workers established, with the FWC authorized to provide remedies.
• Regulated business collective agreements for workers introduced.

1 November 2024

• Digital Labour Platform Consultative Committee established to provide a forum for interested parties to consult together on workplace relations matters relating to digital platform work.

1 January 2025

• The intentional underpayment of wages by employers becomes a criminal offence, including where they're part of a course of conduct that started before the provisions take effect.

26 February 2025 (or earlier if proclaimed)

• Determination of model terms to be made by a Full Bench. Additionally, the FWC must decide a model term for dealing with dispute for enterprise agreements.

Changes Already in Force

Several significant changes in employment law have already been implemented, introducing new regulations and protections across various aspects of employment.

• Legislative changes under Respect@Work now require employers to take reasonable and proportionate measures to eliminate all forms of unlawful sex discrimination.
• The Secure Jobs, Better Pay initiative introduces new requirements for flexible working requests, fixed-term contracts, pay secrecy, and changes to enterprise bargaining, including simplifying the BOOT (Better Off Overall Test).
• Changes to fixed-term contracts include limits on duration, renewals, and consecutive contracts, the introduction of the Fixed Term Contract Information Sheet, and the implementation of anti-avoidance protections
• The sunsetting of "zombie agreements," which are agreements made before 2010 that remain in effect without an extension.
• New rules for labour hire workers and the empowerment of the FWC to issue labour hire arrangement orders.
• The introduction of new discrimination protections, especially for victims of domestic and family violence.
• Changes to unpaid parental leave include increased flexibility to take up to 100 days of unpaid leave, with both parents allowed to take up to 12 months of unpaid leave at any time within 24 months of their child's birth or placement.
• Changes to the exemptions for small businesses from redundancy requirements, including the obligation to provide redundancy payments.
• Changes to rights of entry requirements, specifically when an entry notice could lead to the destruction, concealment, or alteration of relevant evidence, or when a suspected breach involves wage underpayment or other monetary entitlements.
• The inclusion of the right to superannuation in the National Employment Standards (NES), allowing most employees covered by the NES to take court action under the FW Act to recover unpaid or underpaid superannuation.
• The introduction of provisions allowing franchisees of a common franchisor to voluntarily negotiate a single enterprise agreement together, as well as enabling employers and employees to transition from multi-enterprise agreements to single enterprise agreements.

Employers and employees alike should stay informed about these changes to understand their rights and obligations under the new legislative framework.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.