Fair Work Legislation Amendments
The workplace relations landscape is ever-changing, so it’s more important than ever for retailers to stay informed and compliant.
The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022, along with the recent Fair Work Legislation Amendments (Closing Loopholes and Closing Loopholes No.2) have introduced significant changes that impact both employee entitlements and employer obligations.
To help small businesses navigate these changes , the Australian Retailers Association (ARA) has developed a best-practice checklist and compiled information and links into this extensive online resource, summarising these changes – ensuring that small and medium sized retailers are best-paced to prepare for these changes.
Don’t let these changes catch you off guard. Ensure your business is prepared by subscribing to the Fair Work Ombudsman (FWO) hub for the latest updates and detailed insights. And contact the ARA membership team on membership@retail.org.au or 1300 368 041 with any additional queries.
Navigate Closing Loopholes Changes Confidently
The Closing Loopholes and Closing Loopholes No.2 legislation will drive changes to the workplace relations system across between December 2023 and February 2025. You can review a timeline of these changes here.
The following resources offer a comprehensive overview of these key changes – providing business with the knowledge needed to navigate these changes. with confidence.
Closing Loopholes No.2 Legislation
RIGHT TO DISCONNECT
Employees now have the right to refuse to monitor, read or respond to contact or attempted contact from their employer or a third party outside of an employee’s working hours, if not unreasonable.
There are a number of non-exhaustive factors to consider in determining whether the employee’s refusal is unreasonable including the reason for the contact, the method of contact and level of disruption, among multiple others.
Modern awards will also have a right to disconnect provision, to be introduced by the FWC, by the 26 August 2024. Currently, the draft terms have been published.
Review the DEWR Factsheet for further information here.
Effective from: 26 August 2024 (for non-small businesses) 26 August 2025 for small businesses
Closing Loopholes No.2 Legislation
CASUAL WORKER REFORMS
There have been multiple changes to casual employment including the reformation of the legislative definition, casual conversion pathways and employer responsibilities.
As part of these changes, employers have new responsibilities when responding to a casual conversion request from an employee.
Relatedly the rules for when the Casual Employment Information Statement must be provided to an employee have now also changed.
Review the DEWR Factsheet for further information here.
Effective from: 26 August 2024
Closing Loopholes No.2 Legislation
EMPLOYEE & EMPLOYER DEFINITION REFORMS
The Fair Work Act 2009 (Cth) has been amended to include an interpretative principle for determining whether a person is an ‘employee’ or ‘employer’ for the purposes of the Act.
This change means the real substance, practical reality and true nature of the working relationship must now be considered in determining a person’s role within the Act.
Review the DEWR Factsheet for further information on other changes here.
Effective from: 26 August 2024, or an earlier date to be fixed by proclamation
Closing Loopholes No.2 Legislation
MINIMUM STANDARDS FOR EMPLOYEE-LIKE WORKERS
The FWC can now set fair minimum standards for ‘employee-like’ workers that work for or through a digital labour platform.
These minimum standards relate to a wide range of workplace conditions.
Under these changes, Registered organisations can now make collective agreements with digital labour platforms, and employee-like workers can apply to the FWC if they believe they have been unfairly deactivated by the digital labour platform.
Review the DEWR Factsheet for further information on the changes here.
Effective from: 26 August 2024, or an earlier date to be fixed by proclamation
Closing Loopholes No.2 Legislation
CHALLENGING UNFAIR CONTRACTUAL TERMS
The FWC can now resolve disputes relative to independent contractors (that earn below the high-income threshold) and unfair contract terms in service contracts.
This means independent contractors, that meet the income pre-requisites, can apply to the FWC for dispute resolution in relation to unfair terms in a services agreement.
If the commission finds the term unfair, they will be able to change the terms of the contract or set aside, all or part of the contract.
Independent contractors that earn above the threshold can still apply for remedies under the Independent Contractors Act 2006.
Review the DEWR Factsheet for further information on changes here.
Effective from: 26 August 2024, or an earlier date to be fixed by proclamation
Closing Loopholes Legislation
CRIMINALISING WAGE THEFT
Employers that intentionally commit underpayment of wages, or other related employee entitlements, can be liable for a criminal offence which attracts serious penalties including possible imprisonment.
A small business that complies with the Voluntary Small Business Wage Compliance Code (yet to be developed) or enters into a cooperation agreement with FWO may not be referred for criminal prosecution.
Review the DEWR Factsheet for further information on other changes here.
Effective from: Either 1 January 2025, or sooner, on the day the code is declared by the Minister for Employment and Workplace Relations
Closing Loopholes No.2 Legislation
FWC ENTERPRISE AGREEMENT MODEL TERMS
The FWC is now responsible for making model enterprise agreement terms in relation to flexibility, consultation, dispute resolution, and making dispute settlement terms for copied state instruments.
These changes transfer the powers and responsibilities of preparing and issuing model terms for enterprise agreement and state copied instruments from the Minister for Employment and Workplace Relations to the Fair Work Commission.
Review the DEWR Factsheet for further information here.
Effective from: 26 February 2025, or an earlier date to be fixed by proclamation
Closing Loopholes Legislation
INDUSTRIAL MANSLAUGHTER OFFENCE INTRODUCED
The Work Health and Safety Act 2011 (WHS Act) has been amended to include an industrial manslaughter offence, increasing penalties and introducing criminal responsibility provisions for bodies corporate and the Commonwealth, when work health and safety duties have been breached.
With the introduction of these changes, an industrial manslaughter offence within the Commonwealth work health and safety jurisdiction attracts penalties of $18 million for a body corporate and 25 years imprisonment for an individual. There are also some other significant offence penalties reformations.
Review the DEWR Factsheet for further information on these changes here.
Effective from: 1 July 2024
Closing Loopholes No.2 Legislation
RIGHT OF ENTRY TO INVESTIGATE UNDERPAYMENTS
The changes now provide that an official of a registered organisation that has a valid entry permit from the FWC can now apply to the commission for an exemption certificate waiving the, normally required, 24-hour notice period for entry to workplaces.
The exemption certificate will only be provided where the commission is satisfied there is a suspicion of underpayment, and it is reasonably believed that advance notice would hinder the investigation into the suspected issue of non-compliance.
Review the DEWR Factsheet for further information on these changes here.
Effective from: 1 July 2024
Closing Loopholes No.2 Legislation
CIVIL PENALTIES AND SHAM CONTRACTING CHANGES
These changes increase the maximum civil penalties for standard civil breaches, and serious contraventions of certain civil remedy provisions for bodies corporate (excluding non-small business employers).
These changes also amend the threshold for what is defined as a serious contravention to one that is done knowingly or recklessly.
The defence to misrepresenting an employee as an independent contractor will also change to be if the employer can show they reasonably believed the contract was a contract for services.
Review the DEWR Factsheet for further information here.
Penalties calculated by reference to the amount of underpayment commence 1 January 2025 or sooner, subject to certain conditions.
Effective from: 27 February 2024 for changes to civil penalties, serious contravention definitions and sham contracting defence.
Penalties calculated by reference to the amount of underpayment commence 1 January 2025 or sooner, subject to certain conditions.
Closing Loopholes No.2 Legislation
SINGLE ENTERPRISE AGREEMENT STREAM FOR MULTIPLE FRANCHISEES
Franchises of a common franchisor can now voluntarily bargain together for a single-enterprise agreement.
When employees vote to approve such an agreement, employees will vote together as a single group rather than by workplace.
This change enables franchisees to collectively bargain for common terms and conditions through a single-enterprise agreement stream, subject to the satisfaction of other necessary requirements.
Review the DEWR Factsheet for further information here.
Effective from: 27 February 2024
Closing Loopholes No.2 Legislation
REPEALED REGISTERED ORGANISATIONS PROVISIONS
These changes repeal the amendments made to the Fair Work (Registered Organisations) Act 2009 in 2020 restoring the previous provisions (with the exception of some minor amendments).
This means the requirement for de-merger applications from amalgamated organisations to be made 2 to 5 years after the amalgamation are restored.
The category of constituent parts that are capable of de-merging are also restored, as well as the reversal of some technical 2020 amendments.
Review the DEWR Factsheet for further information on these changes here.
Effective from: 27 February 2024
Closing Loopholes No.2 Legislation
INTRACTABLE BARGAINING DETERMINATIONS UPDATE
The amendments mean that the terms the FWC includes in an intractable bargaining workplace determination (other than wage increase terms and agreed terms) must be no less favourable than the corresponding terms in an existing enterprise agreement that applies to the employee.
The changes also mean that workplace determinations must include terms agreed by the parties at the time of making an application and at subsequent steps in bargaining.
Review the DEWR Factsheet for further information on other changes here.
Effective from: 27 February 2024
Closing Loopholes No.2 Legislation
TRANSITIONING FROM MULTI-ENTERPRISE AGREEMENTS
Employers and employees now have the option to transition from a multi-enterprise agreement, including a single interest employer agreement, or supported bargaining agreement, to a single-enterprise agreement.
This transition can happen at any time, provided the employees would be better off overall compared with the previous agreement.
Review the DEWR Factsheet for further information here.
Effective from: 27 February 2024
Closing Loopholes Legislation
STRONGER PROTECTIONS FOR EMPLOYEES
The FWC must now consider the need to prevent and eliminate discrimination relative to family and domestic violence when performing functions or exercising powers.
It is also now unlawful for an employer to take adverse action again an employee, former employee or prospective employee on the basis they have or have been experiencing family and domestic violence.
EBA’s and modern awards cannot also not include any terms relative to discriminating against a person on the basis of experiencing or having experienced family and domestic violence.
Review the DEWR Factsheet for further information here.
Effective from: 15 December 2023
Closing Loopholes Legislation
CONCILIATION CONFERENCE ORDERS
The changes mean that only a bargaining representative that has applied for a protected action ballot order (PABO) must attend a conciliation conference for any subsequent employee claim action to be protected.
Simultaneously, it is clarified that employers organising or engaging in employer response behaviours, and their bargaining representatives covered by PABO, must attend the conciliation conference to have subsequent employer response action protected.
Review the DEWR Factsheet for further information here.
Effective from: 15 December 2023
Closing Loopholes Legislation
ENTRY CHANGES TO ASSIST HEALTH AND SAFETY REPRESENTATIVES
Officials of registered organisations may now enter workplaces to assist health and safety representatives without being required to have a Fair Work entry permit.
If an official was to enter the workplace in these circumstances, then there are certain requirements the official would need to comply with. These include complying with reasonable directions from employers relating to WHS, not intentionally hindering or obstructing any person or otherwise act in an improper manner, as well as other conditions.
Simultaneously, these changes also impose new obligations on employers, occupiers or other persons dealing with the official.
Review the DEWR Factsheet for further information here.
Effective from: 15 December 2023
Closing Loopholes Legislation
REFORMING THE SMALL BUSINESS REDUNDANCY EXEMPTION
The current small business redundancy pay exemption will not apply to small businesses that are bankrupt or in liquidation and which, have downsized due to insolvency to become a small business employer.
This means, subject to the conditions above being met, employees terminated due to insolvency of their employer retain their entitlement to redundancy pay if before the insolvency, the employer was not a small business employer.
Review the DEWR Factsheet for further information on these changes here.
Effective from: From 15 December 2023
Closing Loopholes Legislation
NEW DELEGATES RIGHTS
Workplace delegates can now represent the industrial interests of union or potential union members in the workplace.
Delegates must now be provided with reasonable access to communicate with eligible employees, paid training and reasonable access to workplace facilities, subject to certain conditions being met, as well as other protections and entitlements.
The FWC has published determinations on the modern award provision for delegates rights which are effective from 1 July 2024. Enterprise agreements made after that date will also need to include a delegates’ rights term.
Review the DEWR Factsheet for further information here.
Effective from: From 15 December 2023
Closing Loopholes Legislation
REGULATED LABOUR HIRE ARRANGEMENTS ORDERS
Employees, unions and host employers can now apply to the FWC for an order that labour hire employees must be paid at least what they would have received under a host’s enterprise agreement if they were directly employed.
These changes do not apply to small businesses or those working for a host under a training contract.
Review the DEWR Factsheet for further information on the terms and conditions of these changes here.
(FWC orders cannot come into force until at least 1 November 2024).
Effective from: 15 December 2023
Compliance with Secure Jobs, Better Pay Changes
The Secure Jobs, Better Pay Fair Work Amendment amended workplace relations laws from the 2022-2023 period inclusive; A timeline of these changes is available here.
They amended rules related to bargaining, job security and compliance enforcement, as well as a range of other workplace conditions, protections and employer obligations.
The resources below provide an overview of the key changes and their significance giving your business the understanding and assurance needed to smoothly adapt to the new regulatory environment.
Secure Jobs, Better Pay
SMALL CLAIMS PROCESS AMENDMENT
The changes increase the cap on the amount that can be awarded through the small claims court from $20,000 to $100,000.
The amendments also clarify the court’s power to award filing fees as costs to successful applications.
Review the DEWR Factsheet for further information on other changes here.
Effective from: 1 July 2023
Secure Jobs, Better Pay
CHANGES TO UNPAID PARENTAL LEAVE
The FWC can now deal with a dispute about a request for an extension of unpaid parent leave where agreement cannot be reached at the workplace level.
Employers now also must discuss a request for the extension of parental leave with them, and if the request for extension is refused, must provide reasons as to the refusal in writing, as well inform the employee of any other period of extension they would agree to.
Examples of what constitutes reasonable business grounds, the threshold for refusing a request, have also been inserted for greater clarity.
FWO has prepared a template letter to help employers navigate employer-obligations when responding to a request.
Review the DEWR Factsheet for further information on other changes here.
Effective from: 6 June 2023
Secure Jobs, Better Pay
ENTERPRISE AGREEMENT APPROVAL CHANGES
Some of the pre-approval requirements for enterprise agreements have been removed.
The changes mean the FWC must be satisfied that an enterprise agreement has been genuinely agreed to by employees.
In assessing whether an agreement has had genuine agreement, the commission must consider the statement of principles.
The changes also require the FWC to be satisfied that the employees that asked to approve the agreement had sufficient interest and are representative.
There are also other changes relative to the employers obligations, and commissions powers.
Review the DEWR Factsheet for further information on additional changes here.
Effective from: 6 June 2023, or an earlier date to be fixed by proclamation
Secure Jobs, Better Pay
SUPPORTED BARGAINING STREAM
The low-paid bargaining stream arrangements has been largely reformed and renamed as the supported bargaining stream.
Supported bargaining agreements can only be made where a supported bargaining authorisation is in operation prior to the agreement being made.
Under the new changes, the FWC is required to make a Supported Bargaining Authorisation where it is satisfied that it is appropriate for an employee and employer to bargain together when regarding certain considerations or if the application is made, and the employees within the application are employees within an industry or occupation declared by the Minister.
Review the DEWR Factsheet for further information on additional changes here.
Effective from: 6 June 2023
Secure Jobs, Better Pay
RIGHT TO REQUEST FLEXIBLE WORK ARRANGEMENTS
Employees that are pregnant, experiencing family or domestic violence or a member of their family or household is experiencing family or domestic violence and that meet the relevant criteria, can now request flexible work arrangements.
The substance of the FWC’s model award term for flexible work arrangements has also been legislated.
The FWC now deal with a dispute about a flexible work arrangement where agreement cannot be reached at a workplace level.
Review the DEWR Factsheet for further information on other changes here.
Effective from: 6 June 2023
Secure Jobs, Better Pay
BARGAINING DISPUTES
The FWC can now resolve intractable bargaining disputes sooner by making an intractable bargaining declaration on application from a single bargaining representative.
The commission can only make a declaration where it is satisfied that it has dealt with a dispute pursuant to s 240 of the FW Act, the parties have been bargaining for a minimum of 9 months, or 9 months have past since the nominal expiry of the previous enterprise agreement, there is no reasonable prospect the parties can reach an agreement and it is reasonable to make the declaration.
Review the DEWR Factsheet for further information on these changes here.
Effective from: 6 June 2023, or an earlier date to be fixed by proclamation
Secure Jobs, Better Pay
BETTER OFF OVERALL TEST
The amendments have clarified the assessment and application of the Better Off Overall Test (BOOT) in relation to enterprise agreements.
These changes clarify the assessment of the BOOT, and empower the FWC to regard certain considerations when applying the BOOT, as well as provide the FWC power to amend an agreement where is necessary to address a concern that does not meet the BOOT, as well as numerous other changes.
Review the DEWR Factsheet for further information here.
Effective from: 6 June 2023, or an earlier date to be fixed by proclamation
Secure Jobs, Better Pay
COOPERATIVE WORKPLACE BARGAINING STREAM
The existing multi-employer bargaining stream has been renamed the Cooperative Workplaces Bargaining Stream (‘CWBS’).
Under the CWBS, an employer can voluntarily seek to join other employers and make a cooperative workplace agreement (a type of multi-enterprise agreement).
Some of the employees involved in bargaining must be represented by a registered organisation and the CWBS must be approved by a majority vote of employees of each employer and pass the Better Off Overall Test (‘BOOT’).
Review the DEWR Factsheet for further information here.
Effective from: 6 June 2023, or an earlier date to be fixed by proclamation
Secure Jobs, Better Pay
PROHIBITION OF SEXUAL HARRASSMENT WITHIN FW ACT
The FW Act now contains a prohibition on sexual harassment within the Act, protecting workers, prospective workers and persons from engaging in sexual harassment.
A dispute resolution process has also been established through the Fair Work Commission.
Review the DEWR Factsheet for further information on other changes here.
Effective from: 6 March 2023
Secure Jobs, Better Pay
NEW EXPERT PANELS IN THE FWC
The FWC must establish new expert panels within the commission one for Pay Equity and one for the Care and Community Sector.
This means that commission has to appoint four new commission members with expertise in gender pay equity, anti-discrimination, and the care and community sector.
Information on the appointment of these expert Panel members can be reviewed here.
Review the DEWR Factsheet for further information here.
Effective from: 6 March 2023, or an earlier date fixed by proclamation
Secure Jobs, Better Pay
REGULATING JOB ADVERTISEMENTS
Job advertisements with a pay rate that would breach the FW Act are now prohibited.
Where a job is advertising specific piece rates, the period rate of pay to which the employee would be entitled to must also be specified.
For employers that breach the new provisions, Fair Work Inspectors can issue compliance notices to them, and legal proceedings can be commenced for the breach.
Review the DEWR Factsheet for further information on other changes here.
Effective from: 7 December 2022 and apply to jobs advertisements on or after 7 January 2023
Secure Jobs, Better Pay
STRONGER PROTECTIONS AGAINST DISCRIMINATION
The changes amend the FW Act so that the list of protected attributes (attributes protected against workplace discrimination) include gender identity, intersex status and breastfeeding.
Review the DEWR Factsheet for further information on other changes here.
Effective from: 7 December 2022
Secure Jobs, Better Pay
ABOLISHING REGISTERED ORGANISATIONS COMMISSION
The registered organisations commission has now been abolished and its powers and responsibilities have been transferred to the General Manager of the Fair Work Commission.
The changes also provide for a modernised enforcement option for the regulation of registered organisations.
Review the DEWR Factsheet for further information on other changes here.
Effective from: 7 December 2022
Secure Jobs, Better Pay
EQUAL RENUMERATION PROVISIONS
The FWC can now order wage increases to address unequal pay, and undervalued work, where it is satisfied there is not equal renumeration for work of equal or comparable value.
The work value provisions in the FW Act have been also amended to clarify the FWC’s consideration of work value reasons for modern award minimum wages must be free of gender-based assumptions and must regard whether the work has been undervalued previously due to gender-based assumptions.
Review the DEWR Factsheet for further information on these changes here.
Effective from: 7 December 2022
Secure Jobs, Better Pay
TERMINATION OF ENTERPRISE AGREEMENTS PAST NOMINAL EXPIRY DATE
The FWC must now terminate an enterprise agreement, upon application, that has passed its nominal expiry date if it satisfied it is appropriate to do so in the circumstances and is satisfied of certain conditions.
The prescribed certain conditions include whether the continue operation of the agreement would be unfair to those covered by the agreement, or the agreement does not, and is not likely to, cover any employees, or the continued operation of the agreement would pose a significant threat to the viability of the employer’s business.
There is also further information the FWC must have regard to in making such a decision.
Review the DEWR Factsheet for further information on these changes here.
Effective from: 7 December 2022
Secure Jobs, Better Pay
THE PROHIBITION OF PAY SECRECY CLAUSES
Employees now have a right to disclose or not disclose their pay.
This right applies to all new employment contracts or other written agreements entered into from 7 December 2022.
Pay secrecy terms in employment contracts will continue to operate, until the contract is varied or a new agreement will be entered into.
If these rules are breached, employers will attract penalties.
For contracts that never had pay secrecy terms, the contract will not be impacted by these amendments with the right coming into effect immediately on 7 December 2022.
Review the DEWR Factsheet for further information here.
Effective from: 7 December 2022
Secure Jobs, Better Pay
CHANGING THE OBJECTS WITHIN THE FAIR WORK ACT
The FW Act has been amended to include gender equality and job security within the object of the Act.
The modern award objectives within the FW Act have been amended to include the principles of secure work and gender equality.
The minimum wage objectives with the FW Act have also been amended to include gender equality.
Resultingly the FWC must take these matters into account within the performance of functions, or exercising powers, including when varying modern awards and the minimum wage.
Review the DEWR Factsheet for further information here.
Effective from: 7 December 2022
Secure Jobs, Better Pay
CHANGES TO INITATING BARGAINING
Under these changes, a bargaining representative who will be covered by a proposed single-enterprise agreement can give an employer a written request to initiate bargaining if certain conditions are satisfied.
The conditions to be met include if the proposed agreement will replace an earlier single-enterprise agreement past its nominal expiry date and whether a single interest employer authorisation did not cease to be because of the making of the earlier agreement, as well as other conditions.
If all the conditions are met, employers must bargain with employees for a new enterprise agreement in good faith.
Review the DEWR Factsheet for further information here.
Effective from: 7 December 2022
Secure Jobs, Better Pay
SUNSETTING OF ZOMBIE AGREMENTS
Agreements and agreement-related instruments (‘Zombie agreements’) made prior to the Fair Work Act 2009 (Cth) and during the period from the 1 July 2009 to 31 December 2009 will automatically terminate on 6 December 2023, unless an application to extend the industrial instrument is made to the FWC prior to 6 December 2023.
These changes and the processes that employers must have followed before the sunsetting of the agreement have already passed.
However, for those that have had their zombie agreements extended, they can read more information about these changes by clicking the factsheet below.
Review the DEWR Factsheet for further information here.
Effective from: 7 December 2022
Secure Jobs, Better Pay
CHANGES TO FIXED TERM CONTRACTS
New rules for the use of fixed term contracts have been introduced.
These rules limit the use of fixed term contracts for the same role beyond two years or two consecutive contracts, subject to certain exceptions.
If an employer breaches the rules, the contract will be held valid with the exception of the term of an expiry date meaning an employee will be considered a permanent employee.
These rules apply to new contracts made after 6 December 2023, but fixed term contracts used previous to this date will be counted towards the new limits.
The FWO Fixed Term Contract Information Statement also reflect these changes.
Review the DEWR Factsheet for further changes and information here.
Effective from: 6 December 2022
