Breaking Down Key Changes to the Fair Work Act 2009 (Cth)

What is the Fair Work Act 2009 (Cth) 

The Fair Work Act 2009 (Cth) (‘Fair Work Act’) essentially governs the employee and employer relationship in Australia. It provides for terms and conditions of employment and sets out the rights and responsibilities of employees, employers, and employee organisations in relation to that employment. 

 

Key changes to the Fair Work Act

Now let’s talk change. Recent months have seen a flurry of legislative activity, reshaping the regulatory landscape with the enactment of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) (Closing Loopholes No.1) and the Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024 (Cth) (Closing Loopholes No.2).These revisions, some already in effect, while others poised for implementation by 2025, signify a significant evolution in workplace regulations. Some of the key revisions include the following: 

 

Same Job, Same Pay—Labour Hire  

Starting November 2024, the Fair Work Commission will be empowered to issue ‘regulated labour hire arrangement order’ which may compel an employer to pay their employees no less than the protected rate of pay. This is expected to reinforce the ‘same job, same pay’ objective for labour hire workers. 

 

Casual Employment 

The definition of casual employment will return to a ‘multi-factor’ assessment. This means peering beyond the contract’s fine print, considering the entire employment relationship. Key considerations will include whether the employer has made a firm advance commitment to continuing and indefinite work and whether the employee is entitled to a casual loading or specific rate of pay. These factors, when taken together, will now carry greater weight than the written contract.  

Employers will need to provide casual employees with a ‘Casual Employment Information Statement’ prior to or soon after the commencement of casual employment. This requirement will also apply at the 6-month and 12-month marks.

But that’s not all.  

Casual conversion will become an employee entitlement. Casual workers can request a shift to permanent employment after 6 months (with a longer period for small businesses) by notifying their employers. 

 

Right to Disconnect 

The ‘Right to Disconnect’ empowers employees to set boundaries beyond their designated work hours by having the ability to:  

  • Decline monitoring, reading, or responding to communication from their employer (or a third party) that occurs outside of their designated ‘working hours’; 
  • Except in cases where the refusal is deemed unreasonable. 

 

Employee-like worker 

For gig workers, there’s good news, too. Enhanced protections are on the way, especially for those in ride-sharing and meal delivery. The Fair Work Commission will be authorised to establish Minimum Standards Orders, outlining fundamental entitlements, and issuing guidelines for employee-like engagements. 

Furthermore, the revisions encompass additional rights enabling workers to contest unjustified terminations of their engagements. 

 

Moving Forward 

Amidst these changes, clarity is key. It is important to understand these key changes and all of the other changes set to shake up the Fair Work Act. Employers and employees alike must grasp their roles and rights as the landscape evolves. 

 

Key takeaways

  • There have been and will be changes to the Fair Work Act.
  • Employers and employees should understand their duties, responsibilities and entitlements.