Right to disconnect

One of the most recent amendments to the Bill was a much-publicised “right to disconnect” for employees who are contacted by their employers outside normal work hours.

They entitle an employee to refuse to respond or to ignore communications by phone, email, or text message that arise outside their working hours, provided the refusal is reasonable. It’s important to note that these provisions have several conditions and exclusions.

Contact us if you are unsure of how this affects you and your business.

Union right of entry(Underpayment of Wages)

The FWC’s power to waive the 24-hour notice period for union representatives to enter workplaces if there is suspicion of a breach of the Fair Work Act will be expanded to allow a waiver if the FWC believes there is a case of union member(s) being underpaid. This follows the introduction of a criminal offence for wage theft in Closing Loopholes 1, effective no earlier than 1 January 2025 (or when the FWC’s Voluntary Small Business Wage Compliance Code begins).

These reforms substantially increase penalties for underpayment, marking the first time proportional penalties are introduced. Employers intentionally underpaying may face up to 10 years in prison and a maximum fine of $7.825 million or three times the underpaid amount (if it exceeds the cap).

To successfully navigate these changes, proactive measures are crucial. Contact us for support with your payroll review.

New definition of employee and a new definition of casual employment

A new definition of “employee” will be put in the Fair Work Act, putting greater emphasis on what actually happens on the job after agreeing to the initial arrangement, reversing some previous decisions that focused on what the parties originally intended the working relationship to be and what it was called.

In relation to casuals, an employee is “casual” if:

• the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and
• the employee IS entitled to a casual loading or a specific rate of pay for casual employees

There are several other factors to consider. Contact us for an explanation.

Changes to “gig work” provisions via introducing “employee-like work” provisions

The FWC will gain powers to set minimum standards in “employee-like” types of work, in particular jobs in the “gig economy” that are run via digital platforms.

“Employee-like” will be determined with reference to whether the worker has low levels of control or authority over the work, bargaining power, and wages (the latter compared to what employees are paid). One of the amendments to the original Bill is that applicants will have to meet at least two of the latter criteria. The government has used the analogy of providing a “ramp”, meaning that the workers will become entitled to some of the conditions applying to employees, but not all of them.

The changes will commence on whichever date is sooner – the proclamation date or six months after Assent.
For more information, book a call with us

Entitlement of casual employees to seek conversion to permanent employment

Employees in businesses of more than 15 employees will be able to apply for conversion to permanent employment after six months of casual employment, instead of waiting the current 12 months. They will be able to apply again after each subsequent six months. The 12-month qualifying period will continue for smaller businesses.

All employees who were casuals before the changes commence will be classified as casuals to begin with and must receive an updated Casual Employee Information Statement after the changes commence.

Employers will be able to refuse a request for conversion to permanent employment on “fair and reasonable operational grounds”, but will have to explain what those grounds are. For example, they could include having to make significant changes to the way work in the business is organised.
One amendment to the legislation is that employers will not be required to offer conversion to casual employees – it will be up to each employee to make a request.

Employers will have to provide casual employees with a Casual Employment Information Statement more often – before or at the time they start, and also after six months (excluding small business employers) and 12 months.
These provisions will commence six months after the date of Assent.

Need a Casual Work Infomation Statement? Contact Us.

Workers can challenge “unfair contract” provisions

A regulation will be introduced to provide workers under a “high-income threshold” (to be set by the regulation, and presumably indexed each year) to challenge contract provisions in the FWC, which will have the power to vary or set aside contracts. Those above the threshold will continue to have access to the current provisions of the Independent Contractors Act 2006.

Also, existing independent contractors already who earn more than the high-income threshold will have the right to “opt-out” of the employee/employer definition. They will also have a right of revocation.

These changes commence the day after Assent.

Other changes

Other changes passed in the No. 2 Bill this week include the following:

• allowing the FWC to set minimum standards for the road transport industry
• changes to enterprise bargaining disputes, including an amendment from the original Bill that terms of an arbitrated bargaining outcome “must be not less favourable to each” employee and union covered by an existing agreement.