Commonwealth: Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth)

Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 No. 2, 2024 An Act to amend the law relating to workplace relations, certain independent contractors, unfair contracts, the road transport industry and registered organisations, and for related purposes Contents 1 Short title 2 Commencement 3 Schedules 4 Review of operation of amendments made by this Act Schedule 1—Main amendments Part 1—Casual employment Fair Work Act 2009 Part 3—Enabling multiple franchisees to access the single‑enterprise stream Fair Work Act 2009 Part 4—Transitioning from multi‑enterprise agreements Fair Work Act 2009 Part 5—Model terms Fair Work Act 2009 Part 5A—Intractable bargaining workplace determinations Fair Work Act 2009 Part 7—Workplace delegates' rights Division 2—Amendments commencing 1 July 2024 Fair Work Act 2009 Part 8—Right to disconnect Fair Work Act 2009 Part 9—Sham arrangements Fair Work Act 2009 Part 10—Exemption certificates for suspected underpayment Fair Work Act 2009 Part 11—Penalties for civil remedy provisions Division 1—Penalties Fair Work Act 2009 Division 2—Contingent amendments Fair Work Act 2009 Division 3—Underpayments Fair Work Act 2009 Part 12—Compliance notice measures Fair Work Act 2009 Part 13—Withdrawal from amalgamations Fair Work (Registered Organisations) Act 2009 Part 15—Definition of employment Fair Work Act 2009 Part 15A—Provisions relating to the application of section 15AA Fair Work Act 2009 Part 16—Provisions relating to regulated workers Division 1—Overarching road transport matters Fair Work Act 2009 Division 2—Expert Panel for the road transport industry Fair Work Act 2009 Division 3—Minimum standards for regulated workers and persons in a road transport contractual chain Fair Work Act 2009 Division 4—Consequential amendments Fair Work Act 2009 Division 5—Amendment of the Independent Contractors Act 2006 Independent Contractors Act 2006 Division 6—Digital Labour Platform Consultative Committee National Workplace Relations Consultative Council Act 2002 Part 16A—Consequential signpost definitions relating to road transport contractual chains Fair Work Act 2009 Part 17—Technical amendment Fair Work Act 2009 Part 18—Application and transitional provisions Fair Work Act 2009 Schedule 5—Amendment of the Coal Mining Industry (Long Service Leave) Administration Act 1992 Coal Mining Industry (Long Service Leave) Administration Act 1992 Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 No. 2, 2024 An Act to amend the law relating to workplace relations, certain independent contractors, unfair contracts, the road transport industry and registered organisations, and for related purposes [Assented to 26 February 2024] The Parliament of Australia enacts: 1 Short title This Act is the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Sections 1 to 4 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 26 February 2024 2. Schedule 1, Part 1 The day after the end of the period of 6 months beginning on the day this Act receives the Royal Assent. 26 August 2024 4. Schedule 1, Part 3 The day after this Act receives the Royal Assent. 27 February 2024 5. Schedule 1, Part 4 The day after this Act receives the Royal Assent. 27 February 2024 6. Schedule 1, Part 5 A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 6A. Schedule 1, Part 5A The day after this Act receives the Royal Assent. 27 February 2024 9. Schedule 1, Part 7, Division 2 A single day to be fixed by Proclamation. 26 August 2024 However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 10. Schedule 1, Part 8 The day after the end of the period of 6 months beginning on the day this Act receives the Royal Assent. 26 August 2024 11. Schedule 1, Part 9 The day after this Act receives the Royal Assent. 27 February 2024 12. Schedule 1, Part 10 1 July 2024. 1 July 2024 13. Schedule 1, Part 11, Division 1 The later of: 27 February 2024 (a) the day after this Act receives the Royal Assent; and (paragraph (a) applies) (b) 1 January 2024. 14. Schedule 1, Part 11, Division 2 The later of: 9 June 2024 (a) immediately after the commencement of the provisions covered by table item 13; and (paragraph (b) applies) (b) immediately after the commencement of Division 2 of Part 28 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur. 15. Schedule 1, Part 11, Division 3 The later of: (a) the same time as the provisions covered by table item 13; and (b) the commencement of items 213 to 222 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes) Act 2023. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur. 16. Schedule 1, Part 12 The day after this Act receives the Royal Assent. 27 February 2024 17. Schedule 1, Part 13 The day after this Act receives the Royal Assent. 27 February 2024 21. Schedule 1, Part 15 A single day to be fixed by Proclamation. 26 August 2024 However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 21A. Schedule 1, Part 15A The day after this Act receives the Royal Assent. 27 February 2024 22. Schedule 1, Part 16 A single day to be fixed by Proclamation. 26 August 2024 However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 22A. Schedule 1, Part 16A Immediately after the commencement of the provisions covered by table item 22. 26 August 2024 23. Schedule 1, Part 17 The day after this Act receives the Royal Assent. 27 February 2024 24. Schedule 1, Part 18 The day after this Act receives the Royal Assent. 27 February 2024 31. Schedule 5 The later of: 27 February 2024 (a) the day after this Act receives the Royal Assent; and (paragraph (a) applies) (b) the day the withdrawal of the Mining and Energy Division of the Construction, Forestry, Maritime, Mining and Energy Union from that Union takes effect, as determined by the Federal Court of Australia under paragraph 109(1)(a) of the Fair Work (Registered Organisations) Act 2009. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur. Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. 4 Review of operation of amendments made by this Act (1) The Minister must cause a review to be conducted of the operation of the amendments made by this Act, including but not limited to the new jurisdictions relating to regulated workers and the right to disconnect. (2) Without limiting the matters that may be considered when conducting the review, the review must: (a) consider whether the operation of the amendments made by this Act is appropriate and effective; and (b) identify any unintended consequences of the amendments made by this Act; and (c) consider whether amendments of the Fair Work Act 2009, or any other legislation, are necessary to: (i) improve the operation of the amendments made by this Act; or (ii) rectify any unintended consequences identified under paragraph (b). (3) The review must commence no later than 2 years after the day on which this Act receives the Royal Assent. (4) The persons who conduct the review must give the Minister a written report of the review within 6 months of the commencement of the review. (5) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report. Schedule 1—Main amendments Part 1—Casual employment Fair Work Act 2009 1 Section 15A Repeal the section, substitute: 15A Meaning of casual employee General rule (1) An employee is a casual employee of an employer only if: (a) the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and (b) the employee would be entitled to a casual loading or a specific rate of pay for casual employees under the terms of a fair work instrument if the employee were a casual employee, or the employee is entitled to such a loading or rate of pay under the contract of employment. Note: An employee who commences employment as a casual employee remains a casual employee until the occurrence of a specified event (see subsection (5)). Indicia that apply for purposes of general rule (2) For the purposes of paragraph (1)(a), whether the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work is to be assessed: (a) on the basis of the real substance, practical reality and true nature of the employment relationship; and (b) on the basis that a firm advance commitment can be in the form of the contract of employment or, in addition to the terms of that contract, in the form of a mutual understanding or expectation between the employer and employee not rising to the level of a term of that contract (or to a variation of any such term); and (c) having regard to, but not limited to, the following considerations (which may indicate the presence, rather than an absence, of such a commitment): (i) whether there is an inability of the employer to elect to offer, or not offer, work or an inability of the employee to elect to accept or reject work (and whether this occurs in practice); (ii) whether, having regard to the nature of the employer's enterprise, it is reasonably likely that there will be future availability of continuing work in that enterprise of the kind usually performed by the employee; (iii) whether there are full‑time employees or part‑time employees performing the same kind of work in the employer's enterprise that is usually performed by the employee; (iv) whether there is a regular pattern of work for the employee. Note: A regular pattern of work does not of itself indicate a firm advance commitment to continuing and indefinite work. An employee who has a regular pattern of work may still be a casual employee if there is no firm advance commitment to continuing and indefinite work. (3) To avoid doubt: (a) for the purposes of paragraph (2)(b), a mutual understanding or expectation may be inferred from conduct of the employer and employee after entering into the contract of employment or from how the contract is performed; and (b) the considerations referred to in paragraph (2)(c) must all be considered but no single consideration is determinative and not all considerations necessarily need to be satisfied for an employee to be considered as other than a casual employee; and (c) a pattern of work is regular for the purposes of subparagraph (2)(c)(iv) even if it is not absolutely uniform and includes some fluctuation or variation over time (including for reasonable absences such as for illness, injury or recreation). Exceptions to general rule (4) Despite subsection (1), an employee is not a casual employee of an employer if: (a) the contract of employment includes a term that provides the contract will terminate at the end of an identifiable period (whether or not the contract also includes other terms that provide for circumstances in which it may be terminated before the end of that period); and (b) the employee is a member of the academic staff or teaching staff of a higher education institution; and (c) the employee is covered by one of the following modern awards: (i) the Higher Education Industry‑Academic Staff‑Award 2020 as in force from time to time; (ii) the Higher Education Industry‑General Staff‑Award 2020 as in force from time to time; and (d) the employee is not a State public sector employee of a State within the meaning of subsection 30A(1). Note 1: A modern award covers an employee if the award is expressed to cover the employee, even if the modern award does not apply to the employee because an enterprise agreement applies to the employee in relation to that particular employment (see subsection 57(1) which deals with interaction between modern awards and enterprise agreements). Note 2: This means an employee on a fixed term contract who is not covered by paragraphs (4)(b) and (c) may be a casual employee or may be other than a casual employee, depending on whether the employee satisfies the requirements of subsections (1) to (3). Employees engaged as casual employees remain so until the occurrence of a specified event (5) A person who commences employment as a casual employee within the meaning of subsections (1) to (4) remains a casual employee of the employer until: (a) the employee's employment status is changed to full‑time employment or part‑time employment under Division 4A of Part 2‑2; or (b) the employee's employment status is changed by order of the FWC under section 66MA or 739; or (c) the employee's employment status is changed to full‑time employment or part‑time employment under the terms of a fair work instrument that applies to the employee; or (d) the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis. 2 Paragraph 61(2)(ba) Repeal the paragraph, substitute: (ba) casual employment (Division 4A); 3 Subsection 65(2A) Omit "converted under Division 4A of Part 2‑2", substitute "changed under Division 4A of Part 2‑2". 4 Division 4A of Part 2‑2 (heading) Repeal the heading, substitute: Division 4A—Casual employment 5 After section 66A Insert: 66AAA Object of this Division The object of this Division is to establish a framework for dealing with changes to casual employment status that: (a) is quick, flexible and informal; and (b) addresses the needs of employers and employees; and (c) provides for the resolution of disputes to support employee choice about employment status. 6 After Subdivision A of Division 4A of Part 2‑2 Insert: Subdivision B—Employee choice about casual employment 66AAB Employee notification A casual employee may give an employer a written notification under this section if: (a) having regard to subsections 15A(1) to (4) and the employee's current employment relationship with the employer, the employee believes that the employee no longer meets the requirements of those subsections; and (b) the employee does not have a dispute with the employer relating to the operation of Division 4A of Part 2‑2 being dealt with under section 66M (including by way of arbitration under section 66MA) or under section 739; and (c) if the employer: (i) is a small business employer at the time the notification is given—the employee has been employed by the employer for a period of at least 12 months beginning the day the employment started; or (ii) is not a small business employer at the time the notification is given—the employee has been employed by the employer for a period of at least 6 months beginning the day the employment started; and (d) in the period of 6 months before the day the notification is given, the employee has not: (i) received a response from the employer under section 66AAC not accepting a previous notification made under this section; or (v) had a dispute with the employer relating to the operation of Division 4A of Part 2‑2 resolved under section 66M (including by way of arbitration under section 66MA) or under section 739. Note: This section does not prevent an employee changing to full‑time employment or part‑time employment other than under this Division (see paragraphs 15A(5)(c) and (d)). 66AAC Employer response Timing of response (1) An employer must give an employee a written response to a notification given under section 66AAB within 21 days after the notification is given to the employer. Information that must be included in response (2) The response must be in writing and include the following: (a) a statement that the employer: (i) accepts the notification; or (ii) does not accept the notification on one or more grounds referred to in subsection (4); and (b) if the employer accepts the notification—the following information: (i) whether the employee is changing to full‑time employment or part‑time employment; (ii) the employee's hours of work after the change takes effect; (iii) the day the employee's change to full‑time employment or part‑time employment takes effect; (c) if the employer does not accept the notification—reasons for the employer's decision. Consulting with employee (3) Before giving a response under subsection (1), the employer must consult with the employee about the notification and must, if the employer is accepting the notification, discuss the matters the employer intends to specify for the purposes of subparagraphs (2)(b)(i) to (iii). Grounds for employer to not accept notification (4) For the purposes of subparagraph (2)(a)(ii), the employer may not accept the notification on any of the following grounds: (a) having regard to subsections 15A(1) to (4) and the employee's current employment relationship with the employer, the employee still meets the requirements of those subsections; (b) there are fair and reasonable operational grounds for not accepting the notification; (c) accepting the notification would result in the employer not complying with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory. Note 2: In relation to paragraph (4)(c), see (for example) the APS Employment Principle at paragraph 10A(1)(c) of the Public Service Act 1999 (which deals with decisions based on merit) and any directions made under subsection 11A(2) of that Act in relation to that principle. (5) For the purposes of paragraph (4)(b), fair and reasonable operational grounds for not accepting the notification include the following: (a) substantial changes would be required to the way in which work in the employer's enterprise is organised; (b) there would be significant impacts on the operation of the employer's enterprise; (c) substantial changes to the employee's terms and conditions would be reasonably necessary to ensure the employer does not contravene a term of a fair work instrument that would apply to the employee as a full‑time employee or part‑time employee (as the case may be). Note: For the purposes of paragraphs (5)(a) and (c), substantial changes include changes that significantly affect the way an employee would need to work. 66AAD Effect of employer acceptance of employee notification (1) If an employer responds under section 66AAC that the employer accepts an employee's notification given under section 66AAB, the employee is taken to be a full‑time employee or part‑time employee (as the case may be) beginning on the day specified in the response. (2) The day specified in the response for the purposes of subsection (1) must be the first day of the employee's first full pay period that starts after the day the employer response is given, unless the employer and employee agree to another day. 7 Subdivision B of Division 4A of Part 2‑2 Repeal the Subdivision. 10 Subdivision C of Division 4A of Part 2‑2 (heading) Repeal the heading. 11 Sections 66F to 66J Repeal the sections. 12 Section 66K Repeal the section, substitute: 66K Effect of change To avoid doubt, an employee is taken, on and after the day specified in a notice for the purposes of subparagraph 66AAC(2)(b)(iii), to be a full‑time employee or part‑time employee of the employer for the purposes of the following: (a) this Act and any other law of the Commonwealth; (b) a law of a State or Territory; (c) any fair work instrument that applies to the employee; (d) the employee's contract of employment. 13 Subsection 66L(1) Repeal the subsection (not including the note), substitute: (1) An employer must not do any of the following in order to avoid any right or obligation under this Division: (a) reduce or vary an employee's hours of work; (b) change the employee's pattern of work; (c) terminate an employee's employment. 14 Subsection 66L(2) Repeal the subsection, substitute: (2) Nothing in this Division: (a) requires an employee to change to full‑time employment or part‑time employment under this Division; or (b) permits an employer to require an employee to change to full‑time employment or part‑time employment under this Division; or (c) requires an employer to increase the hours of work of an employee who gives a notification to change to full‑time employment or part‑time employment under this Division. (3) To avoid doubt, each of the following is a workplace right within the meaning of Part 3‑1: (a) giving an employer a notification under section 66AAB; (b) receiving a response from an employer in accordance with section 66AAC; (c) being taken to be a full‑time employee or part‑time employee under section 66AAD; (d) receiving an offer or notice in accordance with sections 66B and 66C; (e) accepting an offer and receiving a notice under section 66E; (f) participating in a dispute about the operation of this Division in accordance with sections 66M and 66MA. Note: The general protections provisions in Part 3‑1 prohibit adverse action, coercion, undue influence or pressure, and misrepresentations because of a workplace right of an employee. 15 Section 66M Repeal the section, substitute: 66M Disputes about the operation of this Division Application of this section to disputes about employee choice (1) This section applies to a dispute between an employer and an employee about the operation of Subdivision B of this Division. Resolving disputes (4) In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level, by discussions between the parties. Note 1: Modern awards and enterprise agreements must include a term that provides a procedure for settling disputes in relation to the National Employment Standards (see paragraph 146(b) and subsection 186(6)). Note 2: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards. However, a term of a modern award or an enterprise agreement has no effect to the extent it contravenes section 55 (see section 56). FWC may deal with disputes (5) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the dispute to the FWC. (6) If a dispute is referred under subsection (5): (a) the FWC must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances; and (b) the FWC may deal with the dispute by arbitration in accordance with section 66MA. Note: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate, including by mediation, conciliation, making a recommendation or expressing an opinion (see subsection 595(2)). Representatives (10) The employer or employee may appoint a person, or an employer organisation or employee organisation, that is entitled to represent the industrial interests of the employer or employee to provide the employer or employee (as the case may be) with support or representation for the purposes of: (a) resolving the dispute; or (b) the FWC dealing with the dispute. Note: A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596). Procedural rules (11) Without limiting section 609, the procedural rules may provide, in relation to a dispute between an employer and employee that has been referred to the FWC under subsection (5) of this section, for the joinder of the following as parties to the dispute: (a) any other employee that has a dispute to which this section applies with the same employer; (b) any employee organisation that is entitled to represent the industrial interests of such an employee. 66MA Arbitration FWC may make any orders it considers appropriate (1) For the purposes of paragraph 66M(6)(b), the FWC may deal with the dispute by arbitration, including by making any orders it considers appropriate, including (but not limited to) any order referred to in subsection (4) of this section. (2) However, the FWC must not make an order under this section unless the FWC considers that it would be fair and reasonable to make the order. Note: The FWC must also take into account the object of this Act and the object of this Division (see paragraph 578(a)). (3) The FWC must not make an order under subsection (1) that would be inconsistent with: (a) a provision of this Act; or (b) a term of a fair work instrument (other than an order made under that subsection) that, immediately before the order is made, applies to the employer and employee. Orders relating to employee choice (4) For the purposes of paragraph (1)(a), the orders are the following: (a) that the employee continue to be treated as a casual employee; (b) that the employee be treated as a full‑time employee or part‑time employee (as the case may be) from the first day of the employee's first full pay period that starts after the day the order is made, or such later day that the FWC considers appropriate. (5) In considering whether to make, and the terms of, an order under subsection (1) (including an order referred to in subsection (4)) in relation to a dispute about the operation of Subdivision B of this Division (which deals with employee choice about casual employment), the FWC must: (a) have regard to whether substantial changes to the employee's terms and conditions would be reasonably necessary to ensure the employer does not contravene a term of a fair work instrument that would apply to the employee as a full‑time employee or part‑time employee; and (b) disregard conduct of the employer and employee that occurred after the employee gave the notification under section 66AAB (which deals with employee choice notifications) to the employer. Contravening an order under subsection (1) (8) A person must not contravene a term of an order made under subsection (1). Note: This subsection is a civil remedy provision (see Part 4‑1). 16 Subsection 67(1A) Omit "converted under Division 4A of Part 2‑2", substitute "changed under Division 4A of Part 2‑2". 17 Subsection 125A(2) Omit "and offers and requests for casual conversion", substitute "and how this can be changed". 18 After paragraph 125A(2)(a) Insert: (aa) an employee who has completed 6 months of employment (12 months if a small business employer) can notify the employer if, having regard to the employee's current employment relationship with the employer, the employee believes that the employee no longer meets the requirements of subsections 15A(1) to (4); (ab) the grounds upon which an employer may not accept a notification given by an employee; 18A Paragraphs 125A(2)(b) to (da) Repeal the paragraphs. 19 Section 125B Repeal the section, substitute: 125B Giving employees the Casual Employment Information Statement (1) An employer must give a casual employee the Casual Employment Information Statement: (a) before, or as soon as practicable after, the employee starts employment as a casual employee with the employer; and (b) as soon as practicable after the employee has been employed by the employer for a period of 6 months beginning the day the employment started; and (c) as soon as practicable after the following: (i) the employee has been employed by the employer for a period of 12 months beginning the day the employment started; (ii) the end of any subsequent period of 12 months for which the employee is employed by the employer. (2) However, paragraph (1)(b) and subparagraph (1)(c)(ii) do not apply if at the time the employer has employed the employee for the period referred to in that paragraph or subparagraph, the employer is a small business employer. (3) This section does not, apart from the operation of paragraph (1)(b), require the employer to give the employee the Statement more than once in any 12 months. Note: This is relevant if the employer employs the employee more than once in the 12 months. 19A Paragraph 333E(1)(c) Repeal the paragraph, substitute: (c) the employee is not a casual employee of the employer for whom the period referred to in paragraph (b) is identified by reference to the completion of the shift of work to which the contract relates; and 19A After paragraph 341(2)(i) Insert: (ia) giving a notification, or receiving an offer or notice, under Division 4A of Part 2‑2 (which deals with casual employment); 20 Before section 357 Insert: Subdivision A—Independent contracting 21 At the end of Division 6 of Part 3‑1 Add: Subdivision B—Casual employment 359B Dismissing to engage as casual employee An employer must not dismiss, or threaten to dismiss, an individual who: (a) is an employee of the employer; and (b) performs particular work for the employer; in order to engage the individual as a casual employee to perform the same, or substantially the same, work. Note: This section is a civil remedy provision (see Part 4‑1). 359C Misrepresentation to engage as casual employee A person (the employer) that employs, or has at any time employed, an individual to perform particular work other than as a casual employee must not make a statement that: (a) the employer knows is false; and (b) is made in order to persuade or influence the individual to enter into a contract for casual employment under which the individual will perform the same, or substantially the same, work for the employer. Note: This section is a civil remedy provision (see Part 4‑1). 22 Subsection 539(2) (after table item 5AA) Insert: 5AAA 66MA(8) (a) an employee; (a) the Federal Court; 300 penalty units (b) an employee organisation; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an inspector (c) an eligible State or Territory court 23 Subsection 539(2) (before table item 12) Insert: 11B 359B (a) a person affected by the contravention; (a) the Federal Court; 300 penalty units 359C (b) an industrial association; (b) the Federal Circuit and Family Court of Australia (Division 2) (c) an inspector 23A Subparagraphs 548(1B)(a)(i) to (iv) Repeal the subparagraphs. 23B Subsection 548(1B) (note) Repeal the note. 24 After subsection 548(1B) Insert: (1C) Proceedings are also to be dealt with as small claims proceedings under this section if: (a) a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit and Family Court of Australia (Division 2) in connection with a dispute; and (b) the dispute relates to whether a person was a casual employee of an employer when the person commenced employment with that employer; and (c) the person applying for the order indicates, in a manner prescribed by the regulations or by the rules of the court, that the person wants the small claims procedure to apply to the proceedings. Note: Orders that a court may make under Division 2 in relation to small claims proceedings under this subsection may include a declaration that the employee was a casual employee, a part‑time employee or a full‑time employee when the employee commenced employment with the employer. 25 After paragraph 675(2)(ab) Insert: (ac) an order under subsection 66MA(1) (which deals with casual employment); Part 3—Enabling multiple franchisees to access the single‑enterprise stream Fair Work Act 2009 29 Subsection 172(3) After "related employers", insert ", or that are all related employers mentioned in subsection (3A),". 30 After subsection 172(3) Insert: (3A) Two or more employers that are all related employers under paragraph (5A)(c) (whether or not those employers are also related employers under another paragraph of subsection (5A)) may make a multi‑enterprise agreement under subsection (3). 31 At the end of subsection 172(5A) Add: ; or (c) the employers carry on similar business activities under the same franchise and are: (i) franchisees of the same franchisor; or (ii) related bodies corporate of the same franchisor; or (iii) any combination of the above. Part 4—Transitioning from multi‑enterprise agreements Fair Work Act 2009 32 Section 12 (definition of voting request order) Omit "and (2)", substitute ", (2) and (4)". 33 Paragraph 58(2)(c) Repeal the paragraph, substitute: (c) subsections (3), (4) and (5) do not apply; 34 At the end of section 58 Add: Special rule—single‑enterprise agreement replaces single interest employer agreement (4) If: (a) a single interest employer agreement applies to an employee in relation to particular employment; and (b) a single‑enterprise agreement that covers the employee in relation to the same employment comes into operation; the single interest employer agreement ceases to apply to the employee when the single‑enterprise agreement comes into operation, and can never so apply again. Special rule—single‑enterprise agreement replaces supported bargaining agreement (5) If: (a) a supported bargaining agreement applies to an employee in relation to particular employment; and (b) a single‑enterprise agreement that covers the employee in relation to the same employment comes into operation; the supported bargaining agreement ceases to apply to the employee when the single‑enterprise agreement comes into operation, and can never so apply again. 35 At the end of paragraph 173(2)(d) Add "or". 36 Section 180A (at the end of the heading) Add "—proposed multi‑enterprise agreements". 37 After section 180A Insert: 180B Agreement of bargaining representatives that are employee organisations—certain proposed single‑enterprise agreements (1) This section applies to a proposed single‑enterprise agreement (the new agreement) if: (a) a single interest employer agreement or a supported bargaining agreement (each of which is an old agreement) applies to an employee in relation to particular employment; and (b) the old agreement has not passed its nominal expiry date; and (c) when the new agreement comes into operation, the old agreement will cease to apply to the employee in relation to that employment. (2) An employer must not request under subsection 181(1) that employees approve the new agreement by voting for it unless: (a) each employee organisation to which the old agreement applies has provided the employer with written agreement to the making of the request; or (b) a voting request order permits the employer to make the request. Note: Voting request orders can be made where failure to provide written agreement to the making of a request is unreasonable in the circumstances (see section 240B). 38 Subsection 188(2A) After "to which section 180A", insert "or 180B". 39 Subsection 188(2A) After "with section 180A", insert "or 180B (as the case requires)". 40 Paragraph 188(5)(ab) Omit "(which deals", substitute "or 180B (which deal". 41 After paragraph 191A(3)(b) Insert: (ba) if the agreement is a single‑enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies—those employees; 42 Subsection 193(1) Repeal the subsection, substitute: When a non‑greenfields agreement passes the better off overall test (1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that: (a) each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee; and (b) if the agreement is a single‑enterprise agreement that covers one or more employees (each of whom is an old agreement employee) to whom a supported bargaining agreement or a single interest employer agreement applies—each old agreement employee would be better off overall if the single‑enterprise agreement applied to the employee than if the supported bargaining agreement or single interest employer agreement (as the case requires) applied to the employee. Note 1: Reasonably foreseeable employee is defined in subsection (5). Note 2: Section 193A sets out rules for applying the better off overall test, including requiring the FWC to only have regard to patterns or kinds of work, or types of employment, that are reasonably foreseeable at the test time (see subsection 193A(6)). (1A) If an employee is, at the test time, both an old agreement employee and an award covered employee, the FWC must undertake an assessment against only paragraph (1)(b) for that employee. 43 After subsection 193(2) Insert: (2A) If, under the flexibility term in the supported bargaining agreement or single interest employer agreement, an individual flexibility arrangement has been agreed to by an old agreement employee and his or her employer, the FWC must disregard the individual flexibility arrangement for the purposes of determining whether the single‑enterprise agreement passes the better off overall test. 44 Paragraphs 193A(2)(a) and (b) After "modern award", insert ", supported bargaining agreement or single interest employer agreement (as the case requires)". 45 Paragraph 193A(3)(b) Repeal the paragraph, substitute: (b) if the agreement is not a greenfields agreement: (i) the award covered employees for the agreement; and (ii) if the agreement is a single‑enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies—those employees; 46 At the end of subsection 193A(4) Add: ; (c) if the agreement is a single‑enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies—the bargaining representative or bargaining representatives of those employees (other than a bargaining representative that is not an employee organisation). 47 Paragraph 193A(6A)(b) Repeal the paragraph, substitute: (b) if the agreement is not a greenfields agreement: (i) the award covered employees for the agreement; and (ii) if the agreement is a single‑enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies—those employees; 48 Subsection 193A(7) After "modern award", insert ", supported bargaining agreement or single interest employer agreement (as the case requires)". 49 After paragraph 211(4A)(ac) Insert: (ad) paragraph (4)(c) were omitted; and 50 Paragraph 227A(2)(a) Repeal the paragraph, substitute: (a) before approving the agreement the FWC had regard, under subsection 193A(6), to patterns or kinds of work, or types of employment engaged in, or to be engaged in, by: (i) the award covered employees for the agreement; and (ii) if the agreement is a single‑enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies—those employees; and 51 Paragraph 227A(2)(b) After "subsection (4)", insert "or (5)". 52 At the end of section 227A Add: (5) An employee is covered by this subsection if, on the assumption that the test time mentioned in section 193 were the time the application is made under subsection (1) of this section, the employee would be an employee referred to in subparagraph (2)(a)(ii). 53 After paragraph 227B(2)(a) Insert: (aa) in the case of an agreement of a kind covered by paragraph 193(1)(b)—the condition that a supported bargaining agreement or a single interest employer agreement applies to the employees is satisfied in relation to an employee covered by subsection 227A(5); and 54 After paragraph 227B(2)(f) Insert: (fa) paragraph 193A(4)(c) were omitted; and 55 After subsection 236(1A) Insert: (1B) Despite subsection (1), a bargaining representative of an employee may not apply to the FWC for a determination if: (a) a single interest employer agreement or a supported bargaining agreement applies to the employee; and (b) the agreement has not passed its nominal expiry date. 56 After subsection 238(1) Insert: (2) Despite subsection (1), a bargaining representative may not apply to the FWC for a scope order in relation to a proposed single‑enterprise agreement if: (a) a single interest employer agreement or a supported bargaining agreement applies to one or more employees who will be covered by the proposed single‑enterprise agreement; and (b) the single interest employer agreement or supported bargaining agreement has not passed its nominal expiry date. 57 At the end of section 240A Add: Certain proposed single‑enterprise agreements (4) A bargaining representative for a proposed single‑enterprise agreement (the new agreement) may apply to the FWC for an order (also a voting request order) permitting an employer to make a request under subsection 181(1) that employees approve the new agreement by voting for it if all of the following apply: (a) a single interest employer agreement or a supported bargaining agreement (each of which is an old agreement) applies to one or more employees who will be covered by the new agreement; (b) the old agreement has not passed its nominal expiry date; (c) when the new agreement comes into operation, the old agreement will cease to apply to the employees; (d) it is after the notification time for the new agreement; (e) each employee organisation to which the old agreement applies has been asked to provide the employer with written agreement to the making of the request; (f) one or more of the employee organisations has failed to provide the written agreement. 58 Section 240B Omit "or (2)", substitute ", (2) or (4)". 59 Section 245 Before "The", insert "(1)". 60 At the end of section 245 Add: (2) The FWC is taken to have varied a supported bargaining authorisation to remove an employee when the employee is covered by an enterprise agreement, or a workplace determination, that is in operation. Part 5—Model terms Fair Work Act 2009 61 Subsection 202(5) Repeal the subsection, substitute: (5) The FWC must determine the model flexibility term for enterprise agreements. (6) In determining the model flexibility term, the FWC must: (a) ensure that the model term is consistent with the requirements set out in subsection (1); and (b) take into account the following matters: (i) whether the model term is broadly consistent with comparable terms in modern awards; (ii) best practice workplace relations as determined by the FWC; (iii) whether all persons and bodies have had a reasonable opportunity to be heard and make submissions to the FWC for consideration in determining the model term; (iv) the object of this Act (see section 3), and the objects of this Part (see section 171); (v) any other matters the FWC considers relevant. Note 1: The FWC must be constituted by a Full Bench to make the model flexibility term (see subsection 616(4A)). Note 2: For the variation of a determination, see subsection 33(3) of the Acts Interpretation Act 1901. (7) A determination under subsection (5) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination. 62 Subsection 205(3) Repeal the subsection, substitute: (3) The FWC must determine the model consultation term for enterprise agreements. (4) In determining the model consultation term, the FWC must: (a) ensure that the model term is consistent with the requirements set out in subsections (1) and (1A); and (b) take into account the following matters: (i) whether the model term is broadly consistent with comparable terms in modern awards; (ii) best practice workplace relations as determined by the FWC; (iii) whether all persons and bodies have had a reasonable opportunity to be heard and make submissions to the FWC for consideration in determining the model term; (iv) whether the model term would, or would be likely to have, the effect referred to in paragraph 195A(1)(a), (b), (c) or (d) (objectionable emergency management terms); (v) the object of this Act (see section 3), and the objects of this Part (see section 171); (vi) any other matters the FWC considers relevant. Note 1: The FWC must be constituted by a Full Bench to make the model consultation term (see subsection 616(4A)). Note 2: For the variation of a determination, see subsection 33(3) of the Acts Interpretation Act 1901. (5) To avoid doubt, subsections (1) and (1A) do not limit the matters the model consultation term may deal with. (6) A determination under subsection (3) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination. 63 After subsection 616(4) Insert: Model term determinations (4A) A determination of any of the following model terms must be made by a Full Bench: (a) a model flexibility term for enterprise agreements, under subsection 202(5); (b) a model consultation term for enterprise agreements, under subsection 205(3); (c) a model term for enterprise agreements about dealing with disputes, under subsection 737(1); (d) a model term for copied State instruments about dealing with disputes, under subsection 768BK(1A). 64 Section 737 Repeal the section, substitute: 737 Model term about dealing with disputes (1) The FWC must determine a model term for dealing with disputes for enterprise agreements. (2) In determining the model term, the FWC must: (a) ensure that the model term is consistent with the requirements set out in subsection 186(6); and (b) take into account the following matters: (i) whether the model term is broadly consistent with comparable terms in modern awards; (ii) best practice workplace relations as determined by the FWC; (iii) whether all persons and bodies have had a reasonable opportunity to be heard and make submissions to the FWC for consideration in determining the model term; (iv) the operation of subsections 739(3), (4), (5) and (6) and 740(3) and (4); (v) the object of this Act (see section 3); (vi) any other matters the FWC considers relevant. Note 1: The FWC must be constituted by a Full Bench to make the model term dealing with disputes (see subsection 616(4A)). Note 2: For the variation of a determination, see subsection 33(3) of the Acts Interpretation Act 1901. (3) A determination under subsection (1) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination. 65 Section 768BK (after the heading) Insert: Model term required 66 Subsection 768BK(1) Omit "prescribed by the regulations", substitute "determined under subsection (1A)". 67 After subsection 768BK(1) Insert: Model term determined by FWC (1A) The FWC must determine a model term for the purposes of subsection (1). 68 Subsection 768BK(2) Omit "subsection (1), the model term prescribed", substitute "subsection (1A), the model term determined". 69 Subsection 768BK(2) Omit "prescribed" (last occurring), substitute "determined". 70 At the end of section 768BK Add: (3) In determining the model term, the FWC must take into account the following matters: (a) whether the model term is broadly consistent with comparable terms in modern awards; (b) best practice workplace relations as determined by the FWC; (c) whether all persons and bodies have had a reasonable opportunity to be heard and make submissions to the FWC for consideration in determining the model term; (d) the operation of subsections 739(3), (4), (5) and (6) and 740(3) and (4); (e) the object of this Act (see section 3); (f) any other matters the FWC considers relevant. Note 1: The FWC must be constituted by a Full Bench to make the model term for settling disputes (see subsection 616(4A)). Note 2: For the variation of a determination, see subsection 33(3) of the Acts Interpretation Act 1901. (4) A determination under subsection (1A) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination. Part 5A—Intractable bargaining workplace determinations Fair Work Act 2009 70A At the end of subsection 270(3) Add: Note: Any such terms must comply with section 270A. 70B After section 270 Insert: 270A Terms dealing with matters at issue (1) This section applies if, immediately before the determination is made, an enterprise agreement applies to one or more employees who will be covered by the determination. (2) A term that is included in the determination to comply with subsection 270(3), and that deals with a particular matter, must be not less favourable to each of those employees, and any employee organisation that was a bargaining representative of any of those employees, than a term of the enterprise agreement that deals with the matter. (3) If a term to be included in the determination is not less favourable to a class of employees to which a particular employee belongs, the FWC is entitled to assume, in the absence of evidence to the contrary, that the term is not less favourable to the employee. (4) Subsection (2) does not apply to a term that provides for a wage increase. 70C Subsection 274(3) Repeal the subsection, substitute: Agreed term for an intractable bargaining workplace determination (3) An agreed term for an intractable bargaining workplace determination is: (a) a term that the bargaining representatives for the proposed enterprise agreement concerned had agreed, at the time the application for the intractable bargaining declaration concerned was made, should be included in the agreement; and (b) any other term, in addition to a term mentioned in paragraph (a), that the bargaining representatives had agreed, at the time the declaration was made, should be included in the agreement; and (c) if there is a post‑declaration negotiating period for the declaration—any other term, in addition to a term mentioned in paragraph (a) or (b), that the bargaining representatives had agreed, at the end of the period, should be included in the agreement. Note: The determination must include an agreed term (see subsection 270(2)). Part 7—Workplace delegates' rights Division 2—Amendments commencing 1 July 2024 Fair Work Act 2009 86 Section 12 Insert: associated regulated business for a regulated worker: see subsection 350B(5). 87 After section 350A Insert: 350B Protection for workplace delegates—regulated workers (1) The associated regulated business for a workplace delegate who is a regulated worker must not: (a) unreasonably fail or refuse to deal with the workplace delegate; or (b) knowingly or recklessly make a false or misleading representation to the workplace delegate; or (c) unreasonably hinder, obstruct or prevent the exercise of the rights of the workplace delegate under this Act or a fair work instrument. Note: This subsection is a civil remedy provision (see Part 4‑1). (2) To avoid doubt, subsection (1) applies only in relation to the workplace delegate acting in that capacity. (3) The burden of proving that the conduct of the associated regulated business is not unreasonable as mentioned in subsection (1) lies on the associated regulated business. Exception—conduct required by law (4) Subsection (1) does not apply in relation to conduct required by or under a law of the Commonwealth or a State or a Territory. Meaning of associated regulated business (5) The associated regulated business for a workplace delegate who is a regulated worker is the regulated business that: (a) engaged the workplace delegate under a services contract; or (b) arranged for, or facilitated entry into, the services contract under which the workplace delegate performs work. 88 Subsection 350C(1) Omit "for members of the organisation who work in a particular enterprise", substitute: for either or both of the following: (a) members of the organisation who work in a particular enterprise; (b) members of the organisation who perform work for, or that has been arranged or facilitated by, a particular regulated business. 89 Subsection 350C(2) Omit "their employer", substitute "the employer or regulated business concerned". 90 Subparagraphs 350C(3)(b)(i) and (ii) Repeal the subparagraphs, substitute: (i) in relation to employees—reasonable access to the workplace and workplace facilities where the enterprise concerned is being carried on; and (ii) in relation to regulated workers—reasonable access to the workplace facilities provided by the regulated business concerned; and (iii) if the workplace delegate is an employee—reasonable access to paid time, during normal working hours, for the purposes of related training, unless the workplace delegate is employed by a small business employer. 91 Subsection 350C(4) Repeal the subsection, substitute: (4) The employer of, or associated regulated business for, the workplace delegate is taken to have afforded the workplace delegate the rights mentioned in subsection (3) if the employer or regulated business has complied with the delegates' rights term in the fair work instrument that applies to the workplace delegate. 92 Paragraphs 350C(5)(a), (b) and (c) Repeal the paragraphs, substitute: (a) the size and nature of the enterprise or regulated business; (b) the resources of the employer concerned or the regulated business; (c) the facilities available at the enterprise or provided by the regulated business. 93 Subsection 539(2) (table item 11, column 1) After "350A(1)", insert "350B(1)". Part 8—Right to disconnect Fair Work Act 2009 94 Section 12 Insert: right to disconnect term means a term in a modern award that provides for the exercise of an employee's rights set out in subsections 333M(1) and (2). Note: Section 333M deals with the right to disconnect. 95 At the end of Subdivision C of Division 3 of Part 2‑3 Add: 149F Right to disconnect A modern award must include a right to disconnect term. Note: Right to disconnect term is defined in section 12. 96 At the end of section 321 Add: Division 6 is about generally allowing an employee to refuse contact or attempted contact from their employer (or from a third party where the contact or attempted contact relates to their work) outside the employee's working hours. The FWC may deal with disputes between an employer and an employee about the right to disconnect, including by making orders to stop an employee from refusing contact or to stop an employer from taking certain actions. 97 At the end of Part 2‑9 Add: Division 6—Employee right to disconnect Subdivision A—Employee right to disconnect 333M Employee right to disconnect (1) An employee may refuse to monitor, read or respond to conta