A major raft of industrial relations reforms has come into effect, changing the way workers engage with their employers, disconnect once they leave the workplace, and participate in the multi-billion-dollar gig economy.

From Monday, August 26, several key industrial relations reforms included in the landmark Closing Loopholes legislative package begin.

Here we have provided a starting point for employers and workers looking to understand their new rights and obligations.

The Right to Disconnect

Employees in the Fair Work system will have a new workplace right called the right to disconnect. This starts on 26 August 2024 for most employees. For employees of small businesses, it will start on 26 August 2025.

The right to disconnect protects employees who refuse to monitor, read or respond to contact or attempted contact outside their working hours, unless their refusal is unreasonable. This includes contact, or attempted contact, from:

- their employer, or
- another person, if the contact or attempted contact is work-related.

Certain matters need to be considered when determining whether or not an employee’s refusal is unreasonable. These include:

- the reason for the contact or attempted contact
- how the contact or attempted contact is made and the level of disruption it causes the employee
- the nature of the employee’s role and their level of responsibility
- the employee’s personal circumstances, including family or caring responsibilities
- whether the employee is compensated or paid extra for:

– remaining available to work when the contact or attempted contact is made, or
– working additional time outside of their ordinary hours of work.
Other matters may also be considered.

Casual Employees

The laws around casual work in the Fair Work system are changing. From 26 August 2024, there will be a new definition of casual employee. There will also be a new pathway to full-time or part-time (permanent) employment for casual employees. We can deal with disputes about this new pathway.

A new definition of casual employee

There is a new definition of casual employee in section 15A of the Fair Work Act 2009 from 26 August 2024. This includes a general rule that an employee is a casual only 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 casuals under a Fair Work instrument or their employment contract

An exception to this general rule applies to some academic and teaching staff at higher education institutions engaged on fixed term contracts.

Firm advance commitment to continuing and indefinite work

When assessing whether an employee has a firm advance commitment to continuing and indefinite work, the employer and employee need to consider the real substance, practical reality and true nature of the employment relationship.

A firm advance commitment might be found in the employment contract, or in a mutual understanding or expectation between the employer and employee.

Specific matters need to be considered when making an overall assessment of whether there is a firm advance commitment to continuing and indefinite work. These include:

- whether the employer can choose to offer or not offer work, and

- whether the employee can choose to accept or reject work (and whether this actually happens) Fair Work Commission fact sheet Published 19 August 2024 Changes to casual employment laws Page 2 of 5

- whether it is likely that there will be future continuing work available, considering the nature of the business

- whether permanent employees perform the same kind of work that the employee usually performs, and
- whether the employee performs a regular pattern of work.

Other matters may also be considered.

A new pathway to permanent employment

The Employee Choice Pathway is available from 26 February 2025 for most employees, or 26 August 2025 for employees of small business employers. The current laws about offers and requests for Casual Conversion will continue to apply until then.

Employee choice pathway

This starts with an employee notifying their employer of their choice to become a permanent employee. A casual employee who wishes to remain a casual employee can choose to remain casual and not use this process.

Employee notification

A casual employee who chooses to, can give their employer a written notification of their choice to become a permanent employee if:

- they have worked for the employer for at least 6 months, or 12 months for a small business employer, and - they believe they no longer meet the definition of casual employee.

A casual employee can’t give their employer a written notification if they are currently in dispute with their employer about changing to permanent employment, or if in the previous 6 months certain events have occurred under the casual conversion or employee choice pathways.

Employer response

The employer must respond within 21 days after the employee gives them the notification. If the employer accepts the notification, the casual employee will become a permanent employee. The employer may refuse the notification on the following grounds:

- where the employee still meets the definition of casual employee

- where there are fair and reasonable operational grounds to do so, or

- accepting the notification would result in the employer not complying with a recruitment or selection process required by law.

Casual employees will remain casual unless their status changes

Casual employees engaged after 26 August 2024, under the new definition of casual employee, will stay casual unless their employment status changes:

- under the Casual Conversion or Employee Choice pathways

- because of a Fair Work Commission order under a Fair Work instrument, or

- because they accept an alternative offer of employment (other than as a casual employee) by their employer. Casual employees engaged before 26 August 2024,

- under the current definition of casual employee, will stay casual under the new definition, unless they move to permanent employment.

Gig Ecomony

Gig economy platforms, like rideshare operators and food delivery startups, have challenged traditional notions of employment and contract work in recent years.

Unlike employees, who complete work on an ongoing basis for set entitlements, and independent contractors, who work on discrete projects and miss out on sick leave and superannuation contributions, gig economy workers sit somewhere in the middle. And that is the view now enforced by the Fair Work Commission.

It has been empowered to enact minimum standards orders for a new category of “employee-like” worker.

From August 26, 2024, the FWC is empowered to make legally-binding minimum standards orders, or non-binding guidelines, covering certain regulated workers and businesses.

Those standards orders and guidelines can cover a wide swathe of factors, including but not limited to:

• Payment terms,

• Penalty rates,

• Payment for time between gigs,

• Minumum periods of engagement on a gig platform,

• Eligible deductions,

• Insurance,

• Consultation with workers, and

• Rights for workers’ delegates.

In addition, regulated workers will gain the power to challenge “unfair” deactivation and termination by a gig economy platform.

And the FWC now has the power to hear applications for collective agreements, proposed either by a digital platform or a union representing gig workers.

For all updates and new regulations check on the Fair Work Commission website to stay ahead of what’s changing.

For help or advice get in touch with us here.