Closing Loopholes Act ā€“ Changes Currently Affecting Employers

7 February 2024

The first part of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) (the Act) came into force in December 2023. This part includes amendments to the laws regarding wage theft, labour hire and workplace delegates. Part two is currently being considered.

Not all parts of the Act have come in to force at this time. This article summarises the changes to current legislation which have taken effect at the time of writing. 

Anti-Discrimination 
Provisions against discrimination are strengthened to include protection from discrimination on the basis being subject to family and domestic violence. This means that an employee being subject to family and domestic violence is protected from discrimination due to this in the same way that employees cannot be discriminated against due to gender, religion, or disability. 

Workplace Delegates (Union Delegates)
The new frameworks for the rights of workplace delegates have commenced. These include new protections and rights including:

  • prohibiting employers from unreasonably refusing to deal with union delegates;
  • reasonable access to the workplace; and
  • paid time for the purposes of related training. 

Small business employers are exempt from some obligations. Enterprise Agreements voted on after 1 July 2024 must include a term about union delegates’ rights. The Fair Work Commission is in the process of preparing a model delegate’s rights clause to be inserted in Modern Awards from 1 July 2024. 

Labour Hire 
Applications may now be made to the Fair Work Commission regarding Labour Hire arrangements, seeking orders that labour hire employees be paid not less than the amount the ‘host’ employer’s enterprise agreement requires them to pay their own employees. However, orders requiring this may not be made until 1 November 2024. 

Small Business Redundancy Exemption 
Small businesses (less than 15 employees) are not usually required to pay redundancy pay to their employees, however there is now an exception to this for non-small businesses which have become small businesses in the period leading up to or following bankruptcy or liquidation. These non-small businesses who became small businesses may still be required to pay employees redundancy pay. 

Disclaimer: This summary is a guide only and is not legal advice. For more information, call ECA Legal on (08) 6241 6129 or email ecalegalwa@ecawa.org.au