June 11, 2024

‘Closing Loopholes’ legislation implemented – are you up to date?

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The Australian Government has passed various new workplace laws as part of its 2-part suite of ‘Closing Loopholes’ legislation. These amendments are being progressively rolled out between December 2023 and August 2025.

This blog post will outline some of the key changes that will be taking place later this year in 2024. Read on to find out what these amendments mean for you and your business and when they come into effect.

From 26 August 2024

Right to disconnect

Following in the footsteps of several European jurisdictions and perhaps spurred by the boom in work-from-home and flexible arrangements during the COVID-19 years, eligible employees will have a new ‘right to disconnect’ outside of work hours from 26 August 2024. The new right will also be included in all awards from this date.

More specifically, employees can refuse to monitor, read or respond to employer or work-related third party contact outside of their working hours unless such refusal is unreasonable. Whether or not the refusal is unreasonable will depend on several factors such as:

  • The reason for the contact;
  • Whether the employee is being paid for being available outside of ordinary work hours or working additional hours;
  • The nature of the employee’s role and their level of responsibility; and
  • The employee’s personal circumstances, such as whether they have family or carer responsibilities.

Whilst the right to disconnect should first be discussed and attempted to be resolved at a workplace level in the first instance, the Fair Work Commission can now deal with such disputes.

Please note that the ‘right to disconnect’ will be available to small business employees (i.e. employees of a business that employs less than 15 people) at a later date, from 26 August 2025.

Changes to casual employment

A new definition of ‘casual employee’ will be introduced to the Fair Work Act 2009 (Cth) (the “Act”).

The Act currently says a person is a casual employee if:

  • They are offered a job;
  • The offer does not include a firm advance commitment that the work will continue indefinitely with an agreed pattern of work; and
  • They accept the offer knowing there is no firm advance commitment.

The new definition designates a person a casual employee if:

  • There isn’t a firm advance commitment to continuing and indefinite work, taking into account factors such as:
  • the substance, practical reality and true nature of the employment relationship;
  • whether the employer can or cannot offer work to the employee;
  • whether the employee can accept or reject work;
  • whether it’s reasonably likely there will be future work available at the employer’s business;
  • whether there are other employees performing the same kind of work that the casual employee usually performs; and
  • whether the employee has a regular pattern of work.
  • The person is entitled to receive a casual loading or specific casual pay rate.

Employees who were casual employees before 26 August 2024 will be casuals under this new definition.

There is also a new pathway for casual employees to convert to permanent employment if:

  • They have been employed for at least 6 months (or 12 months if they are a small business employee); and
  • They believe they no longer meet the requirements of the new casual employee definition.

Following a casual conversion notification, an employer must consult with the employee and respond within 21 days of the notification, either accepting or refusing the change.

Last but not least, a new Casual Employment Information Statement must be provided to all new casual employees as soon as possible after the start of their employment.

Changes for independent contractors

Changes will be made to help determine whether a worker is an employee or independent contractor for employment law purposes. The following will now have to be considered:

  • The real substance, practical reality and true nature of the working relationship; and
  • All parts of the working relationship between the parties, including but not limited to the terms of the contract and how the contract is performed in practice.

These changes signal a move away from recent case law which gave primacy to the terms of contracts rather than the entirety of relationships.

Whilst these changes have been slated to start on 26 August 2024, the government may set an earlier start date.

It’s also important to note that these changes are for employment law only. Therefore, tax, superannuation and workers compensation law may continue to have different definitions.

For right of entry exemption certificates and permit conditions, visit https://www.fairwork.gov.au/about-us/workplace-laws/legislation-changes/closing-loopholes/unions-and-registered-organisations-changes

What should I do next?

If you’re part of a workplace, whether as an employer, employee or independent contractor, take the time now to review your contractual arrangements to see if any changes need to be made. The Fair Work Ombudsman has a page dedicated to the Closing Loopholes changes here and more information can be found on the Australian Government Department of Employment Workplace Relations’ website here. The full text of the amendments to the Act can be read as Amendment No. 1 and Amendment No. 2.

At Digby Law, we’re here to help you with your employment law matters. If you have any queries or concerns about these changes, please don’t hesitate to get in touch.

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