Labor’s closing loopholes bill passed the Senate on Thursday, with a Greens amendment creating a new right for employees to disconnect from work emails and calls.
The bill – which was supported by Labor, the Greens, Lidia Thorpe and David Pocock, – will return to the House of Representatives to approve amendments, before passing into law.
We’ve taken a look at how the bill will change Australian workplaces, and what it means for workers and employers.
The right to disconnect
The right to disconnect will prevent employees being punished for refusing to take unreasonable work calls or answer emails in their unpaid personal time.
Under the new system, employees will be able to raise a complaint about intrusive phone calls or the expectation they answer work emails out-of-hours with their employer.
If the issue is not resolved at the workplace level, employees can apply to the Fair Work Commission for an order on the employer to stop unreasonable out-of-hours contact.
The Coalition is concerned the breach of an order is punishable by fines of $18,000, but the Greens note this is a reflection of existing penalties in the act and won’t apply if the employer follows an order.
The new right will apply to all employees, although contact from an employer is reasonable in instances where the person being contacted is paid to be on-call or their job description requires it.
The Greens workplace relations spokesperson, Barbara Pocock, has explained that contact during an emergency or to change conditions of work such as location or hours are also deemed to be reasonable.
Gig economy
The bill will allow individuals and organisations to apply to the Fair Work Commission for orders for minimum standards in the gig economy, including on pay, penalty rates, superannuation, payment terms, record-keeping, insurance and deactivation.
Deactivation is the process of removing a gig economy worker from an app, ending their ability to earn income despite claims workers are “independent” of the platform.
The reforms are limited to digital platform workers who have low bargaining power, low authority over their work or receive pay at or below the rates of comparable employees.
Under amendments negotiated by the independent senator David Pocock, workers will have to meet at least two of these criteria – a change employer groups think will mean it is less likely independent contractors on platforms such as Airtasker and Hipages will be caught.
A departmental analysis of the gig economy reforms before the amendments suggested the changes could be worth an estimated “$4bn in increased wages for workers over 10 years”, or $404m a year.
Casual rights
The bill makes it easier for casuals to convert to full-time work if they choose. Casuals who work full-time hours would be able to access leave entitlements and guaranteed hours if they change their employment status.
Under changes negotiated by Pocock, the existing requirement on businesses to offer conversion will be abolished creating a single pathway for casual conversion by the employee’s choice.
Employers will be able to refuse an employee request for conversion on “fair and reasonable operational grounds”.
Intractable bargaining
In 2022, the federal government legislated to allow the Fair Work Commission to arbitrate intractable bargaining disputes, providing an avenue for unions to win pay rises without reaching a new agreement with an employer.
Late in 2023, the government agreed to a Greens amendment that the terms of an arbitrated outcome “must be not less favourable to each” employee and union covered by an existing workplace pay deal.
That amendment will pass, notwithstanding concerns from the Victorian treasurer, Tim Pallas, and employer groups that it guarantees unions “will be no worse off on a clause by clause basis” if they dig in and seek an arbitrated outcome from the industrial umpire, encouraging unions to do so.
Road transport conditions
The bill empowers the Fair Work Commission to set minimum standards for the road transport industry, including the charge-out rates of independent contractor owner-drivers and therefore their rate of pay.
Amendments to the bill require the establishment of a majority owner drivers subcommittee to advise the Fair Work Commission on road transport minimum standards.
Right of entry
Currently, union officials can exercise a right of entry to workplaces to investigate potential breaches of the Fair Work Act with 24 hours’ notice or if the Fair Work Commission waives this requirement because of concerns about possible document destruction.
The bill expands the grounds to waive the 24 hours’ notice if the FWC is satisfied that the suspected contravention involves the underpayment of wages of a union member who works there.
Pocock negotiated an amendment requiring the FWC to be satisfied advanced notice of entry would hinder an effective investigation into underpayment.
