As part of the Closing Loopholes reforms, several employment law changes have now come into effect

The changes, which commenced 26 August 2024, introduced new rights and responsibilities for both employers and employees.

RIGHT TO DISCONNECT
Employees of non-small businesses (15 or more employees) now have the right to disconnect, meaning they can refuse to monitor, read, or respond to contact (or attempted contact) from their employer or a third party outside their working hours, unless the refusal is deemed unreasonable.
This right extends to small businesses (fewer than 15 employees) from 26 August 2025.
The reasonableness of a refusal will be evaluated based on several factors, including:
• the reason for the contact or attempted contact;
• how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;
• the extent to which the employee is compensated:
– to remain available to perform work during the period in which the contact or attempted contact is made; or
– for working additional hours outside of the employee’s ordinary hours of work;
• the nature of the employee’s role and level of responsibility; and
• the employee’s personal circumstances (including family or caring responsibilities).
This right is protected under Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act), which prohibits adverse action against employees for exercising or intending to exercise this right.
Disputes should be resolved at a workplace level in the first instance. If unresolved, the Fair Work Commission (FWC) has authority to deal with the dispute.
Modern awards will include a right to disconnect term, to be reviewed after 12 months.

CASUAL EMPLOYMENT CHANGES
Casual definition
A new definition of ‘casual employee’ now applies, focusing on the totality of the employment relationship, rather than solely the terms of the initial offer and acceptance of employment.
An employee is now considered a casual if:
• there is no firm advance commitment to continuing and indefinite work; and
• they are entitled to a casual loading or a specific rate of pay for casual employees, either under an industrial instrument or an employment contract.
Assessing whether there is a firm advance commitment to continuing an indefinite work includes consideration of:
• the real substance, practical reality, and true nature of the employment relationship;
• whether there is an inability of the employer to offer work or not, or an inability of the employee to accept or reject work (and whether this occurs in practice);
• whether, having regard to the nature of the employer’s enterprise, there will likely be future availability of continuing work usually performed by the employee;
• whether permanent employees perform the same kind of work; and
• whether there is a regular pattern of work for the employee.
A firm advance commitment can be in the form of a contract or a mutual understanding or expectation.
Employers are prohibited from dismissing and rehiring employees as casuals for the same or similar work and from making false statements to persuade employees to become casuals. Civil penalties apply for breaches. Casual employees remain so until they transition to permanent employment or accept a permanent role.

Casual conversion
After six months (or 12 months for small businesses), employees can request to convert to permanent employment.
The employer must consult with the employee and respond within 21 days, and disputes can be resolved by the FWC.

Casual employment information statement
Casual employees must receive a Casual Employment Information Statement (CEIS) before or soon after starting employment.
From 26 August 2024, small business employees must also receive a CEIS every 12 months, while others should receive it at six and 12 months, and then annually.

INDEPENDENT CONTRACTOR CHANGES
Employee and employer definition
The FW Act now includes a definition of employment, determining whether a person is an employee or employer based on the ‘real substance, practical reality and true nature of the relationship’, considering the totality of the relationship including the contract terms and other factors relating to the employment relationship, including how the contract is performed in practice (i.e. whole of relationship test).

Opt out
A contractor earning more than the contractor high income threshold (currently, $175,000) can give notice to ‘opt out’ of the whole of relationship test, instead using the start of relationship test which assesses contractor status based on what the parties have agreed.

Unfair contract terms
Eligible contractors earning less than the high-income threshold can apply to the FWC to address unfair contract terms in service contracts. The FWC can amend or set aside unfair terms related to workplace relations matters.

Regulated workers
New standards and protections apply to certain independent contractors in the gig economy and road transport industry, known as regulated workers. The FWC can set minimum standards, issue guidelines, and register collective agreements for these workers.

AAAA MEMBER SERVICE
Employer Assist provides advice on all aspects of employment law. If you require any assistance with the above changes in your workplace, please contact us on 1300 735 306 or aaaa@employerassist.com.au

This article is intended for information purposes only and should not be regarded as legal advice. Please contact Employer Assist by Industry Legal Group for advice.
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