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What do you mean, 'Closing the Loopholes'?

What do you mean, 'Closing the Loopholes'?

In short, Closing the Loopholes was a title given to two omnibus bills, one passed late last year and one passed in February. Between them, they take care of all sorts of ‘unfinished business’ for the Albanese Government in the industrial relations space. 

While perhaps not having the larger structural significance of the government’s first wave of IR reforms introduced in 2022 with the ‘Secure Jobs, Better Pay’ bill, Closing the Loopholes nevertheless represents a solid improvement to workplace rights in Australia.  

Here are a few of the more substantial reforms. 

Same Job, Same Pay 

This is one of the biggest ‘loopholes’ to be closed by the Albanese Government’s recent IR changes.  

For years, employers have been circumventing their own Enterprise Agreements by outsourcing work to labour hire employees, who they’re often able to pay a lower rate than was previously negotiated with the permanent workforce and their union. 

Now, workers in union will be able to apply for a ‘protected rate of pay’ at workplaces where an enterprise agreement exists. Once approved by the Fair Work Commission, this would effectively set a minimum rate that would apply to all workers on site in comparable roles, whether employed directly or through a labour hire company. 

Hopefully, the removal of this financial incentive to take on labour hire workers at a lower rate of pay will result in an increase in direct employment of far more workers over time. The changes will come into force from November. 

New powers for union reps 

A series of minor changes will strengthen the capacity of delegates and other union representatives to look after workers interests, by: 

  • Codifying the rights of union delegates to receive paid training during work hours 
  • Providing delegates ‘reasonable access’ to the workplace and its facilities 
  • Allowing for ‘reasonable communication’, not just with union members but also with potential members, about their industrial interests 
  • Letting Health and Safety Reps to request the assistance of a union official on site with a health and safety matter, even if that official doesn’t have an entry permit 
  • Enabling unions to request (from the Fair Work Commission) a waiver of the usual minimum 24-hour notice period for entering the workplace, when investing suspected wage theft.  

Strengthening Redundancy Entitlements 

Currently, businesses that employer fewer than 15 workers aren’t always required to pay redundancy entitlements. One of the smaller, but nonetheless important changes in this legislation closes a loophole that allows larger business to avoid making redundancy payments by downsizing to less than 15 employees as part of an insolvency process. 

First responders and PTSD 

Another change will reverse the onus of proof for first responders who suffer PTSD as a result of their work. 

Effectively this means that these workers will no longer have to prove that PTSD is directly work-related to receive appropriate assistance. Members of the Australian Federal Police and Border Force will be covered by this change, in addition to ambulance officers, paramedics, emergency services communications operators and firefighters. 


In a small but positive step toward the eradication of silicosis, the Asbestos Safety and Eradication Agency (ASEA) will now become the Asbestos and Silica Safety and Eradication Agency (ASSEA), with extra resources to develop a silica national plan and associated programs. ASSEA exists to lead coordinated and national action across the states.  

The right to disconnect 

One of the more contentious elements of the ‘Closing the Loopholes’ bills are changes aimed at giving workers the ‘right to disconnect’. Despite the best efforts of Liberal and National MPs, you will now have the right to refuse contact or attempted contact from your employer outside normal working hours. 

Unsurprisingly, this comes with some caveats. Before you close the laptop and switch off the work phone, know that this only applies to what might be considered unreasonable contact. What ‘unreasonable’ actually means is pretty vaguely defined, but asks employers to be mindful of: 

  • The reason for contact (is it really that important?) 
  • How the contact is made (couldn’t that have just been an email?) 
  • Any compensation (are you going to pay me for being on-call?) 
  • The worker’s role and seniority (do I chair the board, or stack the chairs?) 
  • Personal circumstances (the contractions are 2 minutes apart, surely this can wait). 

Until relevant clauses are added to each Award codifying what this right to disconnect looks like in practice, we have a way to go before we can see how much of a difference these changes are going to make – but progress on this issue is both welcome and long overdue.  

Dealing with workforce casualisation 

It’s no secret that the rampant casualisation of the Australian workforce over the last several decades is bad news for workers. While there will always be a legitimate role for casual forms of work, bosses routinely exploit the current system to replace what should be permanent positions with casual ones – providing a workforce that is easier to mistreat, exploit, de-unionise and sack. 

Finally, changes designed to tackle the disease of casualisation head on have passed as part of the Closing the Loopholes reforms. 

This is achieved in two main ways. First, it will no longer be legitimate for employers to continue claiming an employee is casual just because they were originally engaged as a casual, if that worker is really being treated as a permanent, ongoing employee. Now, the real test of whether or not an employee is actually casual will have to give consideration to the “practical reality and true nature of the employment relationship”. 

Second, significant changes have been made to the ‘right to convert’ from casual to permanent employment. 

After 6 months (12 months in businesses with fewer than 15 employees), casual workers can now write to their employer, stating that they no longer consider themselves to be casual and should be converted to permanent employment. 

There are a few justifications your employer may still use to deny your request, the main ones being that they still genuinely think you’re correctly classified as a casual worker (e.g. you don’t work regular hours), or that substantial changes would need to be made to the way the business is run. 

Will employers try to exploit these exceptions? You bet. But gone are the days where an employer can just say no to a conversion request without having to justify their decision. They will be required to consult with you about your conversion request, and there is scope for any disputes to be decided by the Fair Work Commission.  

Protecting gig workers 

Big changes are coming for big workers engaged through digital platforms like Uber Eats and DoorDash. 

The Fair Work Commission will now be able to make binding minimum standards orders for these ‘employee-like’ workers, effectively setting a floor for things like payment, record keeping, consultation and insurance.   

They’ll also be empowered to deal with ‘unfair deactivations’ where, like in an unfair dismissal, a worker is unfairly removed from a digital platform they’re working on.  

Finally, these digital platforms will now be able to create collective agreements with unions.