Changes to the Fair Work Act

The Closing Loopholes Legislation 2023-2025 introduces a multitude of changes to the Fair Work Act.

Some of the key take-aways are explained below.

Right to Disconnect:

Eligible employees will have a new “right to disconnect”, being a right to refuse contact outside of their regular work hours, unless that refusal is unreasonable. That means that an employee can refuse to monitor, read, or respond to contact from an employer or third party. There are factors which must be considered when determining whether an employee’s refusal is unreasonable, such as the reason for the contact, whether the employee is being compensated for being available outside their ordinary hours, the nature of the employee’s role and level of responsibility, and the employee’s personal circumstances, including family or caring responsibilities.

Criminalising intentional Wage Underpayments:

Employers will be committing an offence if:

• they are required to pay an amount to an employee (such as wages) or on behalf of or for the benefit of an employee (such as superannuation) under the Fair Work Act or an industrial agreement

• they intentionally engage in conduct which results in their failure to pay those amounts to or for the employee on or before the day they’re due to be paid.

These provisions do not apply to employers who unintentionally underpay their employees or pay the incorrect amounts by mistake.

Casual Employment Changes:

A new definition of “Casual Employee” will be introduced. Under this definition, an employee is only casual if:

• there isn’t a firm advance commitment to continuing and indefinite work, taking into account a number of factors including the real substance, practical reality and true nature of the employment relationship

• they’re entitled to receive a casual loading or specific casual pay rate.

Employees who start on a casual basis will remain employed as a casual until their employment status changes either through a conversion process or Fair Work Commission order or accepting an alternative employment offer and starting work on that basis.

Independent contractor changes:

A new definition will be added to the Fair Work Act to assist in determining the meaning of “employee” and “employer”. On application, the new definition may mean that some working relationships are characterized differently and may result in different rights and obligations for the people affected. The new definition will not apply in some limited circumstances and will not affect the meaning of employee and employer in other existing laws defining employment, such as those for tax, superannuation or workers’ compensation.

The Bill also contains changes to Labour Hire, Unions and Registered Organisations, Enterprise Bargaining and Enterprise Agreements.

The proposed timeframes for the above changes to be implemented are staggered and some of these changes have already started to take effect.

Employers and employees should familiarize themselves with the proposed changes. For further information please visit the Fair Work Website: www.fairwork.gov.au or speak with your legal practitioner for advice specific to your circumstances.

• Topics:

• The Workplace
• Legal Matters