The Fair Work Legislation Amendment (Closing Loopholes No.1) Act 2023 (Closing Loopholes Act No.1) made major changes to the Fair Work Act 2009 (Fair Work Act), including closing the so-called "labour hire loophole" by giving the Fair Work Commission (FWC) the power to make a "regulated labour hire arrangement order" (RLHA order).

RLHA orders have the potential to impact any business whose employees perform work for a client business, and any business utilising services performed by employees of another business.

The Closing Loopholes Act No.1 included important safeguard mechanisms. The FWC must not make a RLHA order:

• unless it is satisfied that the performance of the work is not for the provision of a service (the "service contractor" exclusion);
• if it is satisfied that it is not fair and reasonable in all the circumstances to make the order.

Over the past year, the FWC has considered and determined a significant number of union applications for RLHA orders. Many have been resolved by consent. In the matters that have been contested, the FWC has invariably determined the application in favour of the applicant union.

To date, there has not been a single example of an employer or regulated host persuading the FWC that it should not make the orders sought by a union.

In July this year, a Full Bench of the FWC ruled that the service contractor exclusion did not apply to BHP Operations Services in respect of employees working on certain coal mine sites operated by BHP Coal in Queensland. The BHP parties intend to make an application to the Federal Court seeking judicial review of the FWC decision.

This webinar covers:

• Explain the circumstances under which your business may be exposed to an application for a RLHA order ("same job, same pay" order).
• Explain the consequences of a RLHA order for the employer and the regulated host.
• Provide an overview of decisions relating to the FWC's discretion to decline to make a RLHA order on the grounds that it would not be fair and reasonable.
• Discuss the FWC's approach to determining that the service contractor exclusion did not apply to BHP Operations Services.

The webinar will also provide an opportunity for participants to ask questions before and during the sessions.

Presenters

Shaun Kelleher, Practice Lead – Workplace Relations, Australian Industry Group