Submission to the Department of Employment and Workplace Relations

Australian Industry Group has made a detailed submission to the statutory review of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 and the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024. Information on the Review is available here.

The Closing Loopholes package introduced wide‑ranging changes to Australia’s workplace relations system. The submission argues that many of the amendments were flawed, rushed through Parliament with insufficient scrutiny and refinement, and are giving rise to problematic or unintended consequences for employers.

The submission critically assesses in detail whether each key area of the Closing Loopholes amendments was appropriate, effective, and proportionate, and identifies options for repeal, amendment, or further review.

Key issues under consideration in the Review and addressed in our submission include:

• Casual employment and the replacement of a clear statutory definition with a complex and uncertain test of who is a casual employee
• Labour hire regulation and the operation of Regulated Labour Hire Arrangement Orders
• The right to disconnect in the Fair Work Act and its interaction with right to disconnect terms in awards and enterprise agreements
• Bargaining amendments, including unfair changes ‘intractable bargaining determinations’ and exit pathways from multi‑enterprise agreements
• Union delegates’ rights, and union right of entry
• Independent contracting, sham arrangements, and the statutory definition of employment
• New regulation of employee‑like workers and road transport contractors, including minimum standards orders and contractual chain orders
• Compliance and enforcement changes, including the wage theft criminal offence and further increases to civil penalties

Although we have urged the Review to recommend the targeted repeal of various elements of the flawed changes, we have also sought to constructively propose a range of sensible amendments to address particularly problematic provisions.

We have also proposed a further review of the impacts of the Closing Loopholes changes, once there has been a more meaningful period over which to assess their operation. Given the radical and highly controversial nature of many of the amendments, it is crucial that the Government not adopt a ‘set and forget’ approach to their implementation and operation.

The Review is also considering the effectiveness of amendments made by the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022.