Change District


Northern Mining & NSW Energy

NSW South Western




Western Australia


Closing Loopholes 2: more good news for workers

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

Back to News