Fair Work Legislation Amendment (Closing Loopholes) Act 2023 - Labour Hire Summary

The  Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) (Closing Loopholes Act) introduces major changes to the Fair Work Act 2009 , including to regulate labour hire arrangements.

The Closing Loopholes Act enables eligible persons to apply to the Fair Work Commission (FWC) for a regulated labour hire arrangement order (RLHA order).

If a RLHA order is made it would generally require a labour hire provider to pay their employees no less than what they would be entitled to be paid under the host employer’s enterprise agreement had the employee been directly employed by that host. There are various obligations which arise from the making of a RLHA order.

This Summary summarises the legislative changes relating to the following issues:

• Making an application for a RLHA order– certain persons may apply for a RLHA order or other related orders such as an alternative protected rate of pay order.
• When will a RLHA order be made–the FWC must make a RLHA order if certain criteria are satisfied and subject to certain exclusions.
• Obligations on a labour hire provider– an employer must not generally pay employees less than the ‘protected rate of pay’ unless exceptions apply or an alternative protected rate of pay order is made.
• Obligations on a host employer– including notification requirements.
• Roping in of employer/s to a RLHA order– employers can be added to a RLHA order.
• Orders providing an alternative protected rate of pay– In limited circumstances, the FWC may determine an alternative protected rate of pay for an employee supplied to work for a host employer by making an alternative protected rate of pay order. For example, if the host has an alternative employment instrument which better reflects the type of work or classification of work to be performed under the RLHA.
• What to pay employees on termination of employment– payment obligations differ depending on the number of hosts worked for and the type of payment.
• Dispute resolution provisions– including the ability for the FWC to make an arbitrated protected rate of pay order.
• Anti-avoidance provisions– prevents labour hire providers or hosts having ‘schemes’ to avoid the provisions.

Further assistance

Members can contact the Ai Group Workplace Advice Line on 1300 55 66 77 or workplaceadvice@aigroup.com.au to discuss any matters arising under the Closing Loopholes Act or any workplace relations issue. This topic is also dealt with in our extensive Guide to the Fair Work Legislation Amendment (Closing Loopholes) Act 2023.

Members can also access more detailed advice and assistance from Ai Group’s national team of workplace lawyers by contacting the Workplace Advice Line (see above) or emailing info@aigroupworkplacelawyers.com.au.