February 26, 2024
The second part of the Albanese Government’s Closing Loopholes industrial relations reforms passed through Parliament this month, delivering new rights for casuals, gig workers and union delegates.
Same Job Same Pay provisions for labour hire workers become law when the first part of the Closing Loopholes Bill passed before Christmas.
The MEU legal team is currently preparing our first applications to win Same Job Same Pay for labour hire workers and we will provide a full update on our first applications and next steps as soon as they are lodged.
Meanwhile, here is an update on the latest improvements for workers’ rights.
A new definition of employee and easier casual conversion
Under the Coalitions 2021 amendment to the Fair Work Act, the definition of what a ‘casual employee’ was changed to be strictly based on what was specified in a workers letter of offer. This was in direct response to our Union’s progress in fighting the permanent casual rort in the mining industry.
Closing Loopholes 2 has fixed this, now requiring the Fair Work Commission to examine the practical nature of the relationship between workers and their employer. This means that if a casual worker works the same set hours on a regular basis and has a firm advance commitment for work (such as being rostered a year in advance) they can make a claim to the Fair Work Commission. The Commission can then have the worker’s employment relationship redefined – even if their employment contract defines them as a casual.
Closing Loopholes 2 also includes an easier pathway for casual employees to convert into permanent positions. If a casual employee is working regular shifts on an ongoing basis, after 6 months they will be able to request conversion into a permanent position if they so choose. It will then be up to the employer to either accept this request or explain in writing their reasons for rejecting it. If the employer has not provided a reasonable justification for rejecting the request, the worker will be able to dispute this decision in the Fair Work Commission.
Intractable Bargaining changes
The Albanese Governments first tranche of industrial relations reforms introduced intractable bargaining provisions, designed to help speed up bargaining and encourage all parties to negotiate in good faith. Under these provisions, if bargaining has been going on for over 12 months, either party can seed an intractable bargaining declaration, which brings the matter into the Fair Work Commission for arbitration. The Commission would then work with both parties to attempt to reach an amicable solution, ultimately deciding on the conditions where both parties cannot reach an agreement.
Unfortunately, employers have used these intractable bargaining declarations to avoid good faith negotiation and attempt to roll back conditions already present in their enterprise agreements. By stalling negotiations, these employers drag out the process in order to reach the arbitration stage where they then argue for already present conditions to be reduced or removed.
Under the changes in Closing Loopholes 2, employers will no longer be able to exploit intractable bargaining. The Fair Work Commission is now required to ensure that no EA they arbitrate on is a backward step for already existing conditions. With this possibility now eliminated, we have already started to see employers return to negotiating in good faith with the Union.
Delegates’ rights
Closing Loopholes 2 introduces a right for workplace delegates to represent members and potential members in their industrial interests. These include reasonable access to workplace facilities, reasonable communication with members, and paid time off to attend training related to their role as a delegate. This means union delegates are about to get a lot more active and visible on site!
Right to disconnect
Thanks to a last-minute amendment, Closing Loopholes 2 also includes the new right to disconnect. While there has been a lot of confusion surrounding this provision, it simply means that it is unlawful for employers to penalize workers for failing to respond to work related texts or emails outside of their paid work hours.
New rights for workers in the gig economy
Closing Loopholes 2 also includes new rights for workers in the app-based gig economy, designed to protect the from unfair dismissal and creating minimum conditions. While these workers are most recognizable as food delivery workers on apps like UberEats, the last few years has seen this model being expanded into a variety of other industries. Most concerning is the growing popularity of the gig model in care industries, such as at-home disability and aged care. The new rights in Closing Loopholes 2 are a welcome and necessary step in regulating this model as it continues to be adopted and refined across the wider economy.
In three major rounds of IR reform over the past 18 months – Secure Jobs, Better Pay; Protecting Workers Entitlements and Closing Loopholes – the Albanese Government has delivered substantial reform for workers.
All of these reforms have been opposed by the Liberal National Coalition and One Nation.
ABCC and Building Code abolished
Registered Organisations Commission abolished
Rebalanced the Fair Work Commission
Repealed Porter demerger laws
10 days paid family and domestic violence leave for everyone, including casuals
The right to disconnect
26 weeks paid parental leave
Allowed new parents to take parental leave on a flexible basis
Restored the role and powers of the Fair Work Commission
Stronger anti-discrimination laws
Job security is an object of the Fair Work Act
Strong definition of an employee to stopped employers converting employees to contractors
Better definition of casual work to stop employers converting permanent jobs into casual jobs
Casual workers have the right to convert to permanent if they are working regular hours with appeal rights to the for FWC
Abolished endless fixed term contracts by limiting them to two years
Made sham contracting unlawful
New rights to challenge unfair contracts in the FWC
Given digital platform gig workers the ability to have minimum standards and pay
Stopped employers turning permanent jobs on good EBA pay and conditions into cheaper labour hire jobs
Zombie agreements which lock workers into low pay have been abolished
Unions now can access multi-employer bargaining
Employers cannot get agreements cancelled to cut pay and rights
The FWC can now arbitrate agreements if bargaining is intractable with no reduction in conditions
Made it easier for workers to start bargaining again after an agreement expires.
New rights for road transport workers to negotiate fair pay
New anti-avoidance laws to stop employer schemes to avoid new obligations
It is now a criminal offence
Penalties have increased five times
Union reps have better right of entry options to stop it
It is now illegal to advertise jobs below the award wage
Stronger rights to chase up unpaid super
Easier to chase up unpaid wages with better access to the small claims process
Stronger rights for migrant workers
Pay day super
Stronger equal pay laws
Stronger laws to stop sexual harassment and discrimination
Outlawed pay secrecy clauses and policies
New gender equity experts in Fair Work
Care and community work experts in Fair Work
Stronger right to request flexible work for carers and others
Gender equity an object of the FW Act
Employers are now criminally liable if they kill a worker with the new industrial manslaughter offence
Banned engineered stone that is killing tradies, and action to eradicate silicosis.
Better access to workplaces for unions to deal with health and safety
Presumptive PTSD for first responders in Comcare
Extensive union delegates rights