Closing Loopholes: Key changes from 26 August

Monday 26 August 2024 marks the beginning of a number of legislative amendments to the Fair Work Act introduced by the “Closing Loopholes” legislation.

The “Closing Loopholes” laws are part of an overall package of reforms that affect every business differently, and, as an employer, it’s important to understand how these upcoming changes will impact your operations.

What’s happening in August 2024?

Key changes	Brief overview
The new right to disconnect commences for non-small business employers (26 August 2025 for small business employers).	Eligible employees will have the right to refuse employer or third-party contact outside of working hours unless that refusal is unreasonable. The right also covers attempted contact outside an employee’s working hours. Importantly, employers are reminded that "the right to disconnect is a workplace right under the Fair Work Act 2009. An employer cannot take adverse action against an employee because of their rights at work, including the right to disconnect. Further details on these changes can be found in our latest article here.
The new casual employment framework commences.	The definition of a “casual” employee in Section 15A of the Fair Work Act has been amended. A new pathway has been introduced for eligible employees to request to convert to full-time or part-time (permanent) employment. This is an alteration to the existing casual conversion. Any application must be given genuine consideration by an Employer and can only be declined on reasonable business grounds. Employers must provide new casuals with the revised Casual Employment Information Statement at the following times during the employment relationship: Small business employers: after 12 months of employers. For other employers: after 6 and 12 months of employment, and then after every 12 months of employment. New dispute options to challenge conversion rejections. The introduction of new protections for employees who are engaged as casual employees under a sham arrangement. The Fair Work Commission is currently considering changes to Awards as a result of the Closing Loopholes casual employment changes.
New rights for Independent Contractors.	There have been changes to definitions and protections for independent contractors. For workers already engaged by constitutionally covered businesses: the start of relationship test applies before 26 August 2024 the whole of relationship test applies from 26 August 2024. Contractors who earn more than the contractor's high-income threshold are able to ‘opt out’ of using the "whole of relationship test" by notifying the business they work for. Instead they can use the "start of relationship test". The contractor's high-income threshold is set at $175,000 as of the 1st of July 2024. Contractors will be able to apply to the Fair Work Commission if they think their services contract contains an unfair contract term. New frameworks will be set up to protect independent contractors performing work on digital labour platforms (employee-like workers) and those working in the road transport industry. Changes to the Sham Contracting defence. The previous defence to sham contracting claims (known as the "recklessness" test) has been changed to a "reasonableness" test.
The definition of an “employee” and “employer” under the Fair Work Act 2009 will change.	A new definition has been added to the Fair Work Act to help determine the meaning of ‘employee’ and ‘employer’.

If you have any questions about any of the changes being implemented, please contact your usual Mazars advisor or our HR consulting team via the form below or on:

Brisbane – Cheryl-Anne Laird	Melbourne – Greg Halse	Sydney – Cheryl-Anne Laird
+61 7 3218 3920	+61 3 9252 0800	+61 2 9922 1166

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Published: 26 August 2024

Authors: Sarah-Jane Hedderman & Yan Flageul

Cheryl-Anne Laird (Right to disconnect content)

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Closing Loopholes: Key changes from 26 August

What’s happening in August 2024?

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The right to disconnect commences

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