19 August 2024
There remain a few provisions of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) that have not yet commenced to operate but will do so on 26 August 2024. Now is the time to determine whether these provisions will impact upon your business and to take steps to ensure you comply.
The following matters are affected:
Casual employees
A new section 15A is added to the Fair Work Act 2009 (Cth) dealing with the definition of “casual employee”. Under the new definition, a casual employee is an employee who does not have a firm advanced commitment to continuing and indefinite work.
There are new casual conversion provisions intended to be “quick, flexible and informal”, allowing a casual employee to request conversion after 6 months of employment (12 months for small businesses).
In addition, employers engaging casual employees must provide them with a copy of the FWO Casual Employment Information Statement at the start of their employment, after the first 6 and 12 months of their employment and, thereafter, after every 12 months of employment. [Note: a small business owner need only provide the statement on commencement and thereafter after the first 12 months of employment.]
Right to disconnect
The right to disconnect provisions commence on 26 August 2024 for large employers and 26 August 2025 for small employers. From that date, employees are entitled to refuse to monitor, read or respond to after- hours work related contact unless that refusal is unreasonable.
In addition, a draft right to disconnect award term is currently being finalised by the Fair Work Commission and will be inserted into all awards by 26 August 2024.
The commission is required to issue guidelines on the operation of the right to disconnect but has deferred that task until it has time to consider the types of disputes that arise following the commencement of the legislation.
Meaning of “employee”
A new section 115AA is inserted which addresses the long-standing issue of distinguishing between employees and independent contractors. The test will now revert to determining the real substance, practical reality and true nature of the relationship based on the totality of the relationship. This effectively reverts to the test that was applicable prior to the 2022 High Court judgments.
There are provisions allowing an individual to opt-out of the operation of section 115AA to remain an independent contractor. This applies only to individuals who earn over the contractor high income threshold ($175,000).
Regulated workers
There are substantial provisions relating to regulated workers, who will generally be contractors working in either the Road Transport Industry or performing digital platform work. Amongst many other things, this will allow minimum standard orders (regulating terms of engagement) to be made for “employee-like workers”. The provisions will also provide an unfair contracts jurisdiction for contractors who earn an amount which is below the contractor high income threshold ($175,000).
Comment
These provisions are worth further consideration by employers and may require amendments to be made to template agreements and policies.
The right to disconnect has attracted considerable attention in the media and will no doubt be the subject of disputes as to how it should operate.
The distinction between independent contractors and employees will not only determine the rights of the parties, but may also have an impact in other areas, for example, income tax, superannuation and insurance.
If you require any further information, call the Bennett Employment team.
View ProfileDisclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.
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