The Federal Government recently introduced the latest in a series of workplace reforms into Federal Parliament. The Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (the Bill), proposes further amendments to the Fair Work Act 2009 (FW Act) and Work Health and Safety Act 2011 (WHS Act) to close “loopholes” to protect Australian workers and strengthen the work health and safety framework.

The amendments go beyond mere loopholes and create new rights across a range of areas in the workplace.

The proposed key amendments are:

• Casuals: A new definition of “casual employee”, and the introduction of a new pathway for eligible employees to convert to permanent employment if they wish to do so.
• Sham Contracting: Changing the defence to “sham contracting” from a test of “recklessness” to one of “reasonableness."
• Definition of Employment: New interpretive principles for determining whether a person is an employee or independent contractor designed to overturn the tests set by the High Court of Australia last year.
• Penalties: Increasing the maximum penalties for underpayments fivefold, and adjusting the threshold for what will constitute a serious contravention.
• Bargaining: Changes to the bargaining framework by enabling multiple franchisees to access the single-enterprise stream; and authorising the Fair Work Commission (FWC) to make and vary enterprise agreement model terms for flexibility, consultation and dispute resolution.
• Regulated Workers: The ability for...

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