Changes to Fair Work Act definition of “employment” from 26 August 2024

The Fair Work Act 2009 (Cth) introduces a pivotal new interpretive principle redefining “employment” effective 26 August 2024. This guidance note unpacks the legislative amendments, providing practitioners with essential insights into the evolving legal landscape governing employee and employer relationships under the FW Act. It highlights the return to a multi-factorial assessment, underscoring the practical realities over contractual terms alone.

Topics Covered

• New definition of employment
• How will the new definition operate?
• Exceptions to the application of the new definition
• When will the new definition come into effect and its impact?
• Can workers opt out of the new definition?
• The common law “multi-factor” test prior to Jamsek and Personnel Contracting

Essential Insights

• Assess the “real substance, practical reality and true nature” of employment relationships beyond contract wording.
• Understand critical exceptions where the new interpretive principle does not apply, including national system employers.
• Prepare for the 26 August 2024 commencement and its implications on entitlements under the FW Act.
• Explore the opt-out mechanism for high-income contractors and its procedural nuances.
• Recognise the continued relevance of common law tests in parallel with the statutory changes.
• Consider the complex interplay between FW Act definitions and other Commonwealth legislation affecting worker status.