The Closing Loopholes Bill is the more common name for the Fair Work Legislation Amendment Act, passed in two parts in 2023 and 2024. It changes or updates various labour laws, going into effect in stages in 2024 and 2025.
Read our Closing Loopholes Bill summary to learn how it’ll affect shift-based businesses of all sizes.
How the Closing Loopholes laws affect shift-based employees and employers
Here are the main changes in the Fair Work Closing Loopholes Bill that affect shift-based work for employers and employees.
Right to disconnect
The right to disconnect means that, from 26 August 2024 (or 26 August 2025, in the case of small businesses), employees won’t have to read or respond to work-related contact outside of working hours. This doesn’t mean employers aren’t allowed to try to contact employees. Instead, it protects employees from repercussions if they don’t answer.
There are exceptions to this. The refusal to respond has to be considered ‘unreasonable’, which can depend on:
Whether an employee is getting paid to be available and ready to take a shift
Whether they’re in a higher position within the company
The reason for the contact (such as emergency situations)
How the contact was made and the level of disruption
If an employer finds that an employee’s refusal was unreasonable, but the employee disagrees, the employee can submit a case to the Fair Work Commission (FWC).
For those in the world of shift work, both employers and employees can stay on top of rosters and easily make last-minute changes with Deputy — no phone calls necessary.
Wage theft
Wage theft occurs when an employer intentionally underpays an employee. Starting on 1 January 2025, it will be a criminal offence.
The ‘intentional’ part is crucial here because there must be proof it was done with malice. This distinction should minimise the chances of business owners getting charged when it happens by accident (such as when a rostering issue occurs and someone doesn’t get paid for the shift they worked).
To further protect small business owners from being charged for accidental underpayment, those who comply with the Voluntary Small Business Wage Compliance Code won’t be criminally prosecuted.
Those who do commit wage theft intentionally or refuse to comply will face increased penalties, including:
A maximum fine of three times the value of the underpayment or $7,825,000 for a body corporate ($1,565,000 for an individual), whichever is greater
Depending on the severity of the case, up to 10 years of jail time
The bill also significantly increases civil penalties for underpayment to as much as $4,695,000 for body corporates.
This all underscores why it’s so important to have software and safeguards in place to help record the exact hours employees work and simplify complex award wage calculations. Software like Deputy makes it easier to pay workers correctly and helps protect the employer.
Same job, same pay
The same job, same pay provision took effect 13 December, 2023. Essentially, this part of the bill states that if a business has an Enterprise Agreement or similar instrument in place for direct employees, it must pay any labour hire employees no less than what it would pay direct employees for the same job.
In other words, a job’s agreed rate stays the same no matter who does the job.
Not only does this protect labour hire employees from being underpaid, but it also protects direct employees from having their wages depressed by competition with cheaper labour or potentially even losing their jobs.
If there’s a concern that the pay rate isn’t the same as that of a regular employee, labour hire employees can turn to the FWC, which can issue an order mandating equal pay.
The law does not, however, apply to the following:
Short-term placements (three months or less)
Trainees and apprentices
Service contractors
Working on public holidays
Technically, the Closing Loopholes Bill doesn’t say anything new about working on public holidays. You might associate the two, however, because a few months before the Closing Loopholes Bill was introduced, the court reiterated a component of the Fair Work Act 2009 related to work on public holidays.
This part of the bill is especially important for shift-based businesses. When creating a roster, employers cannot presume employees will work a public holiday as if it’s a normal day — they must request that employees work that day. An employee is allowed to say no to working on a public holiday without repercussions as long as the refusal is reasonable.
Whether a refusal to work on a public holiday is considered reasonable depends on the following:
The type of business and the work being done by the employee
The employee’s personal responsibilities (such as caring for a family member)
Whether or not the employee could have guessed the employer would ask them to work on the holiday
Whether the employer is offering extra compensation
The type of employment (part-time, full-time, casual, shiftwork)
The amount of notice given in advance
If an employee agrees to work on a public holiday, it should be done in a way that can be recorded, such as:
Email
Text
A draft roster signed by the employee (physically or electronically)
A signed form
Businesses can also write up a contract for employees that states they will have to work on public holidays as long as the request is reasonable and refusal would be unreasonable.
Casual worker definitions and protections
The Closing Loopholes Bill has clearly defined a ‘casual’ employee: a person employed with ‘no firm advance commitment to continuing and indefinite work’. This definition focuses more on the practical reality of the relationship between the employee and employer than on contract terms.
The bill also further expands provisions for casual conversion, meaning the way a casual employee becomes a permanent employee. Effective 26 August, 2024 (or 26 February, 2025, for small businesses), the new law requires the employee to express their intention to convert to permanent employment once eligible rather than requiring the business to offer conversion to the employee.
A casual employee is eligible to request permanent employment after 6 months (12 months for small businesses) if they no longer believe they meet the criteria for a casual employee. The employee can notify the business of their desire to change their status, and the business has 21 days to respond.
If the employee and employer agree on a change of status, the business will convert the employee to full-time or part-time employment. However, a business can refuse such employment on ‘reasonable and fair operational grounds’.
Finally, businesses of all sizes must provide casual employees with information about their rights, including the ability to change their employment status, as soon as they start working.
Not following these rules will lead to civil penalties.
Single-enterprise bargaining for franchisees
This part of the bill, effective 27 February, 2024, makes it easier for multiple franchisee unions to bargain together for a single enterprise agreement. It does this by expanding the definition of ‘related employers’ from the Fair Work Act 2009.
Originally, franchisees needed authorisation from the FWC to bargain as a single enterprise, but this is no longer the case.
Bargaining as a single enterprise allows many employees across different franchises to vote as one group instead of location by location — keeping outcomes consistent for all employees in the bargaining group.
Stay compliant in the face of changing laws
When new laws take effect, you don’t want find yourself open to compliance breaches or scrambling to change your operations to stay compliant — especially if your operations are manual.
Deputy can make everything much simpler, allowing you to manage rostering and compliance changes in one easy-to-use platform. We also continuously update our software to simplify compliance with current laws.
To learn how Deputy helps you simplify compliance, book a demo with one of our experts today. You can also learn more about new law changes by downloading our free compliance guide.
