Fair Work Legislation Amendment (Closing Loopholes) Act 2023

The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 is a Commonwealth amendment Act. It does not replace the Fair Work Act 2009 or the Work Health and Safety Act 2011 with a new stand-alone code. Instead, it changes those existing laws and also makes amendments to other Commonwealth legislation listed in its schedules.

The legislation record shows a wide reform package. In Schedule 1 alone, the Act includes parts dealing with the small business redundancy exemption, closing the labour hire loophole, workplace delegates' rights, strengthening protections against discrimination, wage theft, amendments relating to mediation and conciliation conference orders made under section 448A of the Fair Work Act 2009, right of entry for assisting health and safety representatives, and application and transitional provisions. Other schedules amend the Asbestos Safety and Eradication Agency Act 2013, the Safety, Rehabilitation and Compensation Act 1988, and the Work Health and Safety Act 2011.

For business owners, the main point is that this is a multi-part reform package. A business might be directly affected by some parts and only indirectly affected by others. The safest reading is to treat the Act as a map of reform areas, then work through the parts that match your workforce structure, dispute profile and WHS coverage.

The Act is most relevant to employers and organisations operating under the national workplace relations system and to persons or entities covered by the Commonwealth WHS regime. Because it amends the Fair Work Act 2009, many private sector employers will need to check whether one or more of the Fair Work changes affect them. Because it also amends the Work Health and Safety Act 2011, the WHS reforms are especially important for businesses and entities in Commonwealth WHS jurisdictions.

Some reforms are broad. Wage theft, discrimination protections and workplace process changes can affect many employers with ordinary payroll and people management functions. Other reforms are more targeted. Labour hire changes matter most to businesses using labour hire or similar intermediary arrangements. The small business redundancy exemption changes matter most to smaller employers considering redundancies or restructures. Workplace delegates' rights matter most where there are delegates, union activity or enterprise bargaining issues. Right of entry changes are especially relevant where health and safety representatives are active. Industrial manslaughter and WHS penalty changes are most important for organisations covered by the Commonwealth WHS Act, including public authorities and Commonwealth entities where applicable.

If your business has direct employees only, no labour hire, no current redundancy plans and no Commonwealth WHS exposure, not every reform will affect you in the same way. Even so, most employers should still review payroll compliance, discrimination settings and workplace relations policies because the Act reaches across several common employment functions.

A practical way to read this Act is to start with trigger points. If one of these situations exists in your business, the Act is more likely to require action.

First, do you use labour hire workers, agency-supplied workers or other intermediary workforce arrangements? The Act includes a specific part called closing the labour hire loophole. That is a clear signal that businesses using these arrangements should review how workers are engaged and how industrial coverage and pay settings are assessed.

Second, are you a small business that may rely on the small business redundancy exemption? The Act contains a dedicated part on that exemption. If you are restructuring, reducing headcount, selling part of the business or changing group structures, this is an area to check before making decisions.

Third, do you have workplace delegates, union representatives, enterprise agreement coverage or right of entry issues? The Act includes workplace delegates' rights amendments and a separate part on right of entry for assisting health and safety representatives. Businesses in unionised or partly unionised workplaces should review manager conduct, workplace rules and access arrangements.

Fourth, do you have payroll complexity, award interpretation risk, salary set-off arrangements, overtime exposure or historical underpayment concerns? The Act includes a wage theft part. That means payroll governance should be treated as a serious legal risk area, not just an administrative process.

Fifth, are you covered by the Commonwealth WHS Act, or are you a public authority or Commonwealth-linked entity operating in that regime? Schedule 4 includes industrial manslaughter, Category 1 offence changes, corporate criminal liability, Commonwealth criminal liability, criminal liability of public authorities and a detailed penalties framework. If that is your jurisdiction, safety systems and officer oversight should be reviewed carefully.

The legislation record identifies the major reform areas, even though the practical legal detail sits in the amended Acts themselves. For business readers, the following is the most useful high-level map.

Small business redundancy exemption. Schedule 1 includes a dedicated part on the small business redundancy exemption in the Fair Work Act 2009. Small employers should not assume the exemption applies automatically. Before relying on it, check employee counting, business structure and the exact circumstances of the proposed redundancy.

Labour hire. The Act includes a part called closing the labour hire loophole. Businesses using labour hire should review where supplied workers are used, whether they work alongside direct employees, what industrial instruments apply, and whether current commercial arrangements create compliance risk under the amended Fair Work Act framework.

Workplace delegates' rights. The Act creates a dedicated part on workplace delegates' rights, and the legislation record specifically identifies Division 1 amendments commencing the day after Royal Assent. Employers should review policies, manager instructions and workplace practices that affect delegates' ability to perform their role.

Discrimination protections. The Act includes a part on strengthening protections against discrimination. Employers should review recruitment, promotion, disciplinary and workplace conduct policies to make sure they align with the amended Fair Work Act settings.

Wage theft. The Act includes a wage theft part in the Fair Work Act 2009. Even without setting out offence detail here, the presence of a dedicated wage theft reform means employers should treat underpayment risk seriously, maintain accurate records and investigate payroll issues promptly.

Mediation and conciliation conference orders. The Act also amends the Federal Court of Australia Act 1976 and the Fair Work Act 2009 in relation to mediation and conciliation conference orders made under section 448A of the Fair Work Act 2009. Businesses involved in Fair Work disputes should ensure internal teams and advisers are aware that procedural settings have changed.

Right of entry for assisting health and safety representatives. The Act includes Part 16A on right of entry for assisting health and safety representatives. Businesses with WHS representation structures should check how entry, assistance and workplace access rules now operate.

WHS criminal liability and penalties. Schedule 4 amends the Work Health and Safety Act 2011 across industrial manslaughter, Category 1 offences, corporate criminal liability, Commonwealth criminal liability, criminal liability of public authorities and a detailed penalty structure. For covered organisations, this is a major governance issue rather than a narrow safety paperwork issue.

Because this Act amends several legal regimes, compliance work should be organised by function. HR, payroll, operations, safety and leadership teams may all need to be involved.

Start with workforce mapping. Identify direct employees, labour hire workers, contractors, delegates, health and safety representatives, and any business units operating under Commonwealth WHS coverage. Then review the documents and systems that control those relationships.

For employment compliance, review employment contracts, labour hire agreements, enterprise agreement coverage, award classifications, payroll settings, time and attendance records, redundancy procedures, anti-discrimination policies, delegate access rules and dispute handling processes. For WHS compliance, review safety policies, officer reporting lines, incident response procedures, training records, contractor management systems and board or executive oversight materials.

The Act also contains application and transitional provisions in the Fair Work Act amendments. That matters in practice because businesses should not assume old arrangements continue unchanged or that every new rule applies in the same way to existing situations. Transitional rules can affect when a new obligation applies and how current arrangements are treated.

The Act is in force and is recorded on the Federal Register of Legislation as No. 120 of 2023. It received Royal Assent on 14 December 2023.

The Act has a commencement section, which means not every amendment started on the same day. The legislation record specifically identifies Division 1 of the workplace delegates' rights amendments as commencing the day after Royal Assent. Other reforms have staged commencement arrangements that need to be checked in the Act itself.

For businesses, the practical point is straightforward. when checking a particular reform, confirm the commencement date for that exact part or schedule and then read the amended legislation that now applies.

This page is a practical overview, not a substitute for checking the legislation. The Act is broad and technical, and the legal effect of each reform sits in the amended provisions of the relevant Commonwealth law.

Before making a decision, businesses should confirm four things. First, whether they are in the relevant jurisdiction or coverage category. Second, whether the specific reform has commenced. Third, whether any application or transitional rule affects existing arrangements. Fourth, whether another industrial instrument, such as an award or enterprise agreement, also needs to be considered.

If your business is dealing with labour hire, a proposed redundancy, a payroll underpayment issue, active union engagement, or a serious WHS risk in a Commonwealth WHS setting, it is sensible to get tailored advice before acting.

Do all parts of the Act apply to every employer? No. Some parts are broad, but others are targeted. Labour hire reforms mainly matter to businesses using labour hire. The small business redundancy exemption matters most to smaller employers considering redundancies. WHS criminal liability and penalty changes are most relevant where the Commonwealth WHS Act applies.

Is this only about Fair Work? No. The Act also amends other Commonwealth laws, including the Work Health and Safety Act 2011, the Asbestos Safety and Eradication Agency Act 2013 and the Safety, Rehabilitation and Compensation Act 1988.

What should a business do first? Start with a coverage and commencement check. Then identify which reform areas match your business model and review the documents and systems connected to those areas.

This overview is based on the Federal Register of Legislation entry for the Fair Work Legislation Amendment (Closing Loopholes) Act 2023, including the Act title, in force status, Royal Assent date, commencement framework and the schedule and part headings listed in the legislation record.

Because this page is based on the legislation text and structure rather than a full practical guide to each amended provision, businesses should check the exact amended provisions before implementing any specific change.