The Fair Work Ombudsman has reminded businesses of the changes to the workplace laws that will take effect on 26 August as part of the Closing Loopholes changes to the Fair Work Act.
In particular, three key changes that are set to take effect on 26 August pertain to the ‘Right to Disconnect’, Independent Contractor changes, and Casual Employment changes.
Right to Disconnect
As part of the Closing Loopholes changes, eligible employees will have the right to refuse employer or third-party contact outside of working hours, unless the contact request is required by law, though small-business employes will not be covered by the change until 26 August 2025.
The law states that certain matters must be considered when deciding whether the employee’s disconnection is reasonable or otherwise. These considerations include:
- the reason for the contact (or attempted contact
- how the contact (or attempted contact) is made and how much disruption it causes the employee
- any compensation (monetary or non-monetary) the employee receives to be available to work when the contact is made or to work outside their ordinary hours
- employee’s role and their level of responsibility, and
- employee’s personal circumstances, including family or caring responsibilities.
Independent Contractor changes
The Closing Loopholes changes also created new definitions to help determine not only the meaning of ‘employee’ and ‘employer’ but also determine if a worker is an employee or an independent contractor.
In particular, the changes focused on what is considered “the real substance, practical reality and true nature of the working relationship”, including the terms of the contract and how the contract is performed in practice. This is a change from the existing test which focuses mainly on the terms of a contract.
There are exceptions though, including employees and employers considered to be working within the national workplace relations system because their state referred their powers to make workplace laws to the Commonwealth. These will also not affect the meaning of ‘employee’ and ‘employer’ in other existing laws defining employment such as in taxation, superannuation, and workers compensation.
Casual Employment changes
The Closing Loopholes change also made changes to the definition of what is a casual employee.
The changes state that if a person is a casual employee when they start employment, the employment relationship has no firm advance commitment to ongoing work, taking into account a number of factors and that they’re entitled to a casual loading or specific casual pay rate under an award, registered agreement, or employment contract.
The new law also stated that employees classified as casual who were with their employer before 26 August 2024 will stay casual under the new definition unless they move to permanent employment, while for casuals employed from 26 August 2024, the new casual employee definition will apply.
Changes to an employee’s employment status shall be made through a conversion process or Fair Work Commission order or by accepting an alternative employment offer and starting work on that basis.
Further information on the Closing Loophole changes can be found at the FWO website.
