Fair Work Legislation Amendment Act Passes, Introducing Significant Reforms for Employers and Employees

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By Tiana Daly.

Fair Work Legislation Amendment (Closing Loopholes No. 2) Act was given royal assent on 26 February 2024, bringing in a number of reforms which impact both employers and employees.

There are several changes that will come into force on 1 July 2024:

  • Permit holders can seek exemptions from forward-notice requirements when investigating underpayments
  • Workplace determinations to vary modern awards, and agreements approved by vote must all include a delegate’s right term

Either on 26 August, or at a later date:

  • Changes to the definition of a ‘casual employee’ and the process of casuals converting to full or part time employment
  • Changes to the definition of employment
  • Providing recourse for regulated workers that are unfairly dismissed or ‘deactivated’
  • Introducing delegates’ rights, and providing them access to minimum standards and collective agreements
  • New measures for independent contractors to dispute unfair contracts

From November 1:

  • Regulated labour hire arrangements take effect

Either on 26 February 2025 or from another date:

  • The Fair Work Commission must change the process for determining the model flexibility, consultation and dispute resolution terms for agreements.

Of particular note is the right to disconnect laws coming into effect in August. The ‘right to disconnect’ refers to an employee’s right to reasonably refuse to monitor, read or respond to contact’ from either their employer or any related third-parties outside of their work hours.

Key to the proposed legislation is the test of reasonableness, which attempts to safeguard employers from employee’s failing to respond in emergency situations, or those required for the proper exercise of their role. Discretionary tests regarding reasonableness apply, and include: 

  • The reason for the contact;
  • The means by which the contact is made and the disruption caused;
  • The compensation provided to the employee for being available to do the work;
  • The nature of the employee’s position; or
  • The employee’s personal circumstances.

The first avenue to resolve such a dispute should be internally, however, in situations in which the issue escalates beyond the workplace, either the employee or the employer can apply to the Fair Work Commission to attempt to resolve the issue. The Commission may grant a ‘Stop Order’:

  • To prevent an employer from unreasonably contacting an employee; or
  • To prevent the unreasonable refusal to contact of the employee.

The access of the employee to the right may be restricted in situations in which their salaries are dependent on ‘reasonable additional hours’. However, the aim of the legislation is to protect those who are expected to ‘remain on call’ without the prospects of being reimbursed for their time.

If you are an employer or employee who may be impacted by this new legislation, and require assistance as a result, please contact our Workplace Law Team on 02 9521 6000.

Author: Tiana Daly, Partner and Rowan Whittingham, Paralegal.

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