New Important Changes to Employment law – Closing Loopholes: Fair Work Act changes

The Fair Work Legislation Amendment (Closing Loopholes) Bill 2023  received Royal Assent on 14 December 2023. Some of the changes introduced are as follows:

  1. Redundancy payment changes for small business

Small business employers aren’t usually required to pay redundancy pay to employees who are made redundant.  However, a non-small business can become a small business as part of the process of downsizing its workforce. This can be due to insolvency in the period leading up to (or after) becoming:

  • bankrupt, or
  • going into liquidation.

In the past, this has meant that these employers no longer need to pay redundancy pay to employees made redundant after the business has fewer than 15 employees left.

Under the new laws, non-small business employers that become a small business employer in these circumstances may still be required to pay their employees redundancy pay.

  1. Employees, unions and host employers can now apply to the Commission for new types of orders relating to labour hire employees.

When one of these types of orders applies, a labour hire employer must pay their employees supplied to a host employer at least the same rate they’d receive under the host employer’s:

  • enterprise agreement, or
  • other kind of instrument that provides for terms and conditions of employment (for example, a public service determination).

The orders are subject to certain rules too.

Where an order has been made, host employers must:

  • notify the labour hire employers covered by the order when a new enterprise agreement has been approved that will, if it comes into operation, become the instrument covered by the order
  • apply to the Commission to vary the order if they engage another labour hire employer and their employees to perform the same work as those already covered by the order
  • notify potential and successful tenderers of the possible effect of the order on them.


The Fair Work Commission ( “FWC”) can’t make an order if:

  • it’s not fair and reasonable in the circumstances
  • the arrangements are for a service to be provided rather than the supply of labour to a host employer
  • the host employer is a small business employer.

In addition, an order won’t affect:

  • employees engaged in training arrangements under state and territory laws
  • certain short-term employment arrangements (usually 3 months or less).

Disputes about orders

If a dispute about an order can’t be resolved at the workplace level, a party to the dispute can apply to the Commission to resolve it.

Penalties may apply to employers that don’t comply with the new provisions. This includes new prohibitions that applied from 4 September 2023 on entering into arrangements to:

  • prevent the Commission from making an order
  • avoid the operation or effect of an order that has been made.


There are stronger protections against discrimination for employees experiencing family and domestic violence.

This means that it’s unlawful for an employer to take adverse action (including dismissal) against an employee because the employee is (or has been) experiencing family and domestic violence.

This discrimination protection also applies to potential future employees.

Awards and enterprise agreements must also not include terms that discriminate against an employee because they’re experiencing (or have experienced) family and domestic violence.

4. Workplace delegates’ rights

Workplace delegates now have new rights and protections under the Fair Work Act.

A workplace delegate is an employee:

  • appointed or elected under the rules of an employee organisation
  • who represent members of the organisation in the workplace.

The changes mean that delegates are entitled to:

  • represent the industrial interests of members and potential members of the employee organisation (including in disputes with their employer)
  • reasonable communication with members and potential members about their industrial interests
  • reasonable access to the workplace and its facilities to represent those industrial interests.

Delegates employed by non-small businesses are also entitled to have reasonable access to paid time during normal working hours for workplace delegate training.

The changes also introduce new general protections for which penalties may apply. An employer must not:

  • unreasonably fail or refuse to deal with the workplace delegate
  • knowingly or recklessly make a false or misleading representation to the workplace delegate, or
  • unreasonably hinder, obstruct or prevent the exercise of the rights of the workplace delegate.

5. Compulsory conciliation conferences in protected action ballot matters

A protected action ballot is a secret vote by eligible employees on whether they want to take industrial action for a proposed enterprise agreement.

Where the Commission has made a protected action ballot order in relation to a proposed enterprise agreement, they’re required to make an order directing all bargaining representatives for the proposed agreement to attend a mediation or conciliation conference.

This change means that for the subsequent employee claim action or employer response action to be protected, the following must have attended the mediation and conciliation conference:

  • the employee bargaining representatives who applied for a protected action ballot order
  • the employer and any bargaining representative of the employer.

6. Right of entry

The requirement for officials assisting a state or territory work health and safety representative to hold an entry permit under the Fair Work Act has been removed.

Please contact us if you need an Employment Lawyer in Perth, an unfair dismissal Lawyer in Perth. We can handle all areas of employment law, including:

Employment contract law, Employment contract reviews, Breach of employment contract, Unfair Dismissal, Unlawful termination, Constructive dismissal, Redundancy, Workplace discrimination, Sexual harassment, Workplace bullying, Workplace harassment, Workplace rights and adverse reaction, Workplace investigation, General Protection claim, Restraint of Trade, Unpaid Salary and wages, Flexible Working Arrangement, Federal Circuit and Family Court of Australia Employment Law Proceedings, Appeal to Federal Circuit, Misleading and Deceptive Conduct, Fair Work Commission Proceedings, Fair Work Commission Appeals.

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