July 2024 Closing Loophole Changes
In March we advised of new workplace laws through the ‘Closing Loopholes’ changes, refer here.
As mentioned, effective 26th August 2024 changes to casual employment and the right to disconnect (for non-small businesses) and new formal definition of employment (employee and employer) change in the Fair Work Act.
The definition for a casual employee will be replaced for all new casual employees employed from 26th August 2024. An employee will be a casual only if; there isn’t a firm advance commitment to continuing and indefinite work, factoring in real substance, practical reality and the true nature of the employment relationship and the employee is entitled to be paid a casual loading or a specific pay rate for casuals.
The definition therefore suggests that just because the contract states they are casual is no longer enough because it now factors in also real substance, practical reality and the true nature of the relationship. Other factors considered are whether the employer can offer or not offer work to the employee, the employee can accept or reject work, it is reasonably likely there will be future work available to the employers business, there are full time or part time employees performing the same kind of work and the employee has a regular pattern of work.
Existing casuals will remain as casuals unless they transition to full time or part time employment.
Employers who have misclassified employees may be liable to backpay the employees’ entitlements from commencement of their employment.
In the past casual conversation has been the responsibility of the employer to offer the conversion with the ability of the employee to request however from 26th August 2024 the employer no longer has to offer the conversion to regular casuals, however, the information has to be provided which I will get to next.
Employees who have been employed for at least 6 months (or 12 months for small business) can make a written request to convert to full time / part time employment (depending on their hours) if they believe they really are no longer casual, that is, meet the requirements of the casual employee definition (as above). Employers are required to respond within 21 days in writing with the new status, new hours of work and when the change will take effect.
There are limited grounds to decline as per the Fair Work Act. The employer can refuse if the employee still meets the definition of a casual, there are fair and reasonable operational grounds for not accepting, including; substantial changes would be required, significant impacts on the operations of the business or substantial changes to the employees conditions would be necessary, or accepting would mean the employer isn’t complying with a recruitment or selection process required by law.
Casual Employment Information Statement (CEIS) is now not only required to be provided on commencement but also at other various intervals depending on the size of the business to remind casual employees of the rights to convert to full time or part time employment.
All sized businesses are required to provide the most up to date and current version of the CEIS on commencement and as soon as possible after 12 months of employment. Non-Small businesses are also required to provide it as soon as possible after 6 months of employment and as soon as possible after every subsequent 12 months of employment.
The Right to disconnect will also come into effect on 26th August 2024, however, at this stage only for non-small businesses. (Small business will come into effect on 26th August 2025). Eligible employees will have a new ‘right to disconnect’ outside of work hours.
This means employees will have the right to refuse contact outside their working hours unless that refusal is unreasonable. Therefore an employee can refuse to monitor, read or respond to contact from an employer or a third party.
However, there are considerations in determining whether the employee’s refusal is unreasonable, that being; the reason for the contact, whether the employee is compensated for being available in the period when contact is made or working additional hours outside their ordinary hours of work, the nature of the employee’s role and level of responsibility and the employees’ personal circumstances including family or caring responsibilities.
The right to disconnect will also be a working right under the general protections laws and some Awards will have specific rules and how they apply to different industries and occupations.
New definition will be added to the Fair Work Act to help determine the mean of employee and employer and determine if a worker is an employee or independent contractor and therefore the following must be considered, the real substance, practical reality and true nature of the working relationship and all parts of the working relationship between the parties. This includes their terms of the contract and how it is performed in practice. This is different to the existing test which focuses mainly on the terms of the contract.
There are other changes specific to the Road Transport Industry.
If you have any questions please contact us.