The Fair Work Legislation Amendment (Closing Loopholes Bill No 2) Act 2024 brings in significant changes to employment laws this week commencing on 26 August 2024.
From next Monday, for businesses with greater than 15 employees and from 26 August 2025 for businesses with less than 15 employees, those employees have the right to disconnect from their employment outside of their normal working hours. The new law allows employees to ignore contact from their employer or third parties such as a firm’s clients or third party referrers such as customers. The laws do not prevent the employer or a third party from initiating contact with the employee such as sending an email or telephoning the employee after hours but gives the employee a right to ignore that contact.
Employers will have breached the new law if they then take adverse action against the employee for ignoring that contact. If adverse action is taken against an employee who was reasonable in their decision not to engage with their employer out of hours, employees will be able to lodge a claim with the Fair Work Commission. The rights do not apply to an employee if the refusal is unreasonable and what would be considered to be unreasonable will be subjective and evaluated on a case by case basis. Factors will include, the reason for the contact, the nature of the role and any employee responsibility and whether or not the employer is willing to pay the employee for work after hours.
Other key changes to the Fair Work Act commencing on 26 August 2024 include a re-evaluation of the definition of a casual employee. Employees can only be considered and classified as casual if the employment relationship is defined by a lack of defined working hours and a schedule and is not on a permanent and continuing basis, and the employee would be entitled to a casual loading or specific casual rate of pay under any employment award, enterprise bargaining agreement or employment contract.
When looking at whether an employee should be characterised as a casual employee, the Fair Work Act requires employers to consider the true nature of the employment relationship and the reality of the engagement with that employee. The Fair Work Act identifies several factors to assist employers in determining how to characterise their employees and the relationship with the employer as including but not limited, to the employee’s ability to accept or reject work, where there is a regular pattern of work and the likelihood of future work being available.
The new legislation requires all employers to conduct a review of the nature of employment of their staff. If an employer wrongly identifies an employee as a casual employee they can face back payment obligations and civil penalties for doing so. It is no longer the case that an employee has a choice as to how they are characterised and casual employees who believe they are wrongly identified can initiate a process by giving written notice to their employer as to their re-classification.
If you would like further information in relation to these changes please contact our team.
Written by Pamela Wood