A summary of the changes and when they are expected to come into effect are as follows:

The right to disconnect

Perhaps one of the most anticipated changes is the introduction of an employee’s ‘right to disconnect’.  In summary, employees are empowered to refuse to “monitor, read or respond to contact outside work hours from their employer or a third party, if that contact is work-related and unless that refusal is unreasonable”. [8]

Consistent with the legislative right for employers to request their employees to work ‘reasonable additional hours’, the ‘right to disconnect’ in its final legislated form does not prohibit reasonable work related communication with employees after hours. For employers who have operational needs after work hours however, the right to disconnect will require careful management.

For a detailed analysis of the ‘right to disconnect’, please see our article here.

Independent contractors

A definition of “employee” and “employer” has now been inserted [9] (effectively returning to the multifactorial assessment, as it was applied prior to the High Court of Australia decisions of FMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2).

Certain workers, however, can elect that section 15AA does not apply to them i.e., they can ‘opt out’. [10]  The “opt out” scheme only applies to independent contractors whose income exceeds the “contractor high income threshold”.  The amount of the “contractor high income threshold” will be prescribed by the regulations, which at this stage, have not been published.

The “opt out” scheme is convoluted.  The effect and operation of an “opt out notice” depends on whether notice is provided before or after the commencement of Schedule 1, Part 15, section 15AA.

Further, independent contractors who are parties to a services contract can now apply to the Commission for an order granting a remedy on the basis that the services contract contains a term that is unfair.[11]  There are a list of non-exhaustive matters the Commission must have regard to and include, for example, the relative bargaining power of the parties, the services contract as a whole, or whether the contract term imposes a harsh, unjust or unreasonable requirement on a party to the contract.

The Commission is empowered to make certain orders, including setting aside all or part of a services contract which, in an employment relationship, would relate to a workplace relations matter [12] or amending or varying all or part of services contract, which in an employment relationship, would relate to a workplace relations matter. [13]

Casual employment

There are a raft of changes applying to casual employees, including:

Turning time back to the pre-Workpac[14] position where an employee will not be deemed casual having regard to the “practical reality and true nature of the employment relationship” [15]
• In relation to the meaning of a casual employee, a single indicia will not establish a firm advance commitment to continuing and indefinite work, and not all considerations necessarily need to be satisfied for an employee to be considered as other than a casual employee
• Broadening the capacity for employees to enter into fixed term contracts as casual employees
• ‘Streamlining’ the process by which a casual employee can convert to permanent employment
• Small businesses (i.e., those with less than 15 employees) can refuse casual conversion by removing the requirement to provide a “detailed” statement of reasons and
• Permitting employers to refuse an employee’s request for casual conversion on the basis of “fair and reasonable operational grounds”.[16]

For employers of casual employees, these legislative changes require a renewed substantive assessment of whether their deemed casual employees are truly casual. Given that such an assessment can be somewhat impressionistic, employers should also pay careful attention to their updated procedural obligations in relation to offering casual conversion.

‘Gig economy’ workers

For workers in the ‘gig economy’ who earn a living through the provision of personal services, there is now a definition of an “employee-like worker”.

Employee-like workers who work in the ‘gig economy’ can now apply to the Fair Work Commission for a ‘Minimum Standard Order’ (MSOs) in relation to minimum standards such as rates of pay, penalty rates, superannuation, insurance, and ‘deactivation’ (i.e., dismissal like circumstances where a worker’s right to work for the company is revoked and they are unable to continue using the app to earn income).  It essentially establishes an ‘unfair deactivation’ jurisdiction akin to the current ‘unfair dismissal’ regime.

For operators of gig economy businesses, the legislative changes signal a significant change in the rights of workers with whom they engage. Such organisations should commence an assessment of whether they engage employee-like workers, and how their terms of engagement compare to the legislative rights of employees.

The FWC is now empowered to issue MSOs regarding workers in the ‘road transport industry’.

Right of entry for suspected underpayment

The rights of union officials to apply to the Fair Work Commission for an exemption certificate to waive the requirement for 24 hours’ notice of entry into a worksite have been broadened – if the FWC is satisfied the suspected contravention involves “the underpayment of wages, or other monetary entitlements”[17] or “reasonably believes that advance notice of the entry given by an entry notice might result in the destruction, concealment or alteration of relevant evidence”.[18]

For employers in unionised industries (and in particular, those who are subject to regular exercises of union right of entry powers), there is now a need to update protocols in relation to assessing and permitting unions exercising their right of entry powers, including without prior notice.

Key takeaways for employers

Employers should immediately review their suite of contracts, policies and the current labour arrangements in place to ensure they are compliant with the new legislation.

Moray & Agnew’s national workplace team will shortly be releasing further publications with more detail on the major changes, along with information sessions for clients so make sure you are subscribed to our publications.