The Closing Loopholes No. 2 Act 2024 has commenced after a long campaign by union members. This is a massive win for workers — particularly casual and gig workers. HACSU members were a part of this fight, from providing evidence through surveys and interviews to members going to Canberra to speak directly to policymakers. Thank you to everyone who fought so hard to make this happen.

Below, we’ve broken down the Act’s most relevant parts for members. Read the full Act here or learn more on the Fair Work website.
 

Loophole 1: Being hired as a casual but not being treated as one

Comes into effect 26 August 2024

For too long, your contract could claim you were a “casual”, even if you weren’t treated as one. We’ve seen workers working full-time hours for years on casual contracts, getting the worst of both worlds — the insecurity of casual work but the demands and inflexibility of full-time work.

The Act introduces a new definition of “casual work” based on common sense and what’s actually happening in your job. It reflects what we’ve been saying for a long time: if you’re working like a part-timer and being treated like a part-timer — you’re a part-timer.

A worker is a casual only if “the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work”, and the worker is entitled to casual loading.

There are a few factors to consider:

• Can your employer elect to offer/not offer work, or can you elect to accept or reject work?
• Is it reasonably likely there’ll be continuing work for your role?
• Are the permanent ongoing workers doing the same kind of work as you?
• Do you have a regular pattern of work?
   

Loophole 2: Being stuck on—or forced into—a casual contract

Comes into effect 26 August 2024

Suppose you start a casual job but work the same shifts every week and aren’t allowed to swap shifts. Under the new definition, you might not really be a casual — and now, there is a new pathway to convert to permanent employment.

After working for six months*, you’ll be able to request to become a permanent employee. Employers can refuse a request on “fair and reasonable operational grounds”; however, workers can dispute this decision.

Employers will also be required to notify workers of their right to request casual conversion after six months of employment* and again every 12 months after that.

The other loophole that’s been closed is employers dismissing (or threatening to dismiss) a worker, just to re-hire them as a casual. Sometimes employers entice workers with the lure of a higher casual rate, saying they’ll still get lots of shifts — only for those shifts to dry up and workers left without a steady income. A new rule prohibits this practice, protecting workers from being forced into insecure employment.

*12 months if working for a small business.
 

Loophole 3: Gig workers having no safety net conditions

Comes into effect 26 August 2024

Whether you get your shifts via a paper roster or an app, you deserve fair wages and conditions.

The Act introduces minimum standards for many gig workers. The Fair Work Commission will establish these, including standards for pay and conditions. If you’re an independent contractor working through a digital platform (e.g. Mabel, Kynd) and have low bargaining power, low pay, or little say in how you perform your work, this could apply to you.

The Act also allows unions to collectively bargain with digital platform operators. Workers have been unable to come together as a group to negotiate pay and conditions, so being able to bargain is a breakthrough for gig workers in Australia!

Finally, workers will be able to challenge “unfair deactivation” from digital platforms — because no worker should live in fear of being cut off from their income by a push notification, with no details or way to appeal.
 

Loophole 4: Employers getting away with wage theft

These changes will be rolled out over the next year

Following Victoria’s landmark legislation criminalising wage theft, the Act introduces more substantial penalties across Australia. Companies can now be penalised for up to 3 times the value of the underpayment or $7.825 million (whichever is greater). Individuals can face up to ten years in prison alongside financial penalties.

Until now, businesses had to have a “systematic pattern” of wage theft to attract the worst penalties — now, “knowing” or “reckless” behaviour is enough for employers to qualify.

Unions have also won extra powers to combat wage theft, allowing officials to enter workplaces where underpayments are suspected.
 

Loophole 5: Being connected 24/7, but not paid for it

Comes into effect 26 August 2024 (26 August 2025 for small businesses)
 

Workers are increasingly finding themselves expected to answer texts, calls, and emails in their unpaid free time. Not anymore. You might have heard about a “right to disconnect” clause in some EBAs — this Act makes it the law for all workers.

The right to disconnect means you can refuse to monitor, read, or respond to work-related contact outside work hours (unless that refusal is “unreasonable”). Getting a text about a shift swap or a call about an emergency is fine — but it’s not okay to constantly be asked to review clinical notes or answer questions about support plans after hours.

The Fair Work Commission will be able to assist with disputes and order employers to stop unreasonable contact, but what’s critical here is that it’s been made clear that preventing after-hours contact is your employer’s responsibility. 

Unions have fought for better conditions for casual and gig workers for years. The Closing Loopholes (No. 2) Act is a landmark win, bringing together a raft of changes that help to protect workers and stamp out employers’ predatory behaviour. We’ll keep you updated as these changes come into effect.

If you think you’re being underpaid by your employer, you’re receiving unreasonable after-hours contact, or you have any other issues at work, contact HACSU at assist@hacsu.asn.au or 1300 651 931.