The next tranche of changes under the Fair Work Legislation Amendment (Closing Loopholes
No. 2) Act 2023 (Cth) are coming into effect as of 26 August 2024. It is imperative that
businesses understand these changes now so that they can adequately prepare for when
the changes take effect.
15AA is a new section that will be inserted into the Fair Work Act 2009 (Cth), defining the
ordinary meaning of an employee and an employer. The section will be utilised when determining whether a worker is an employee or an independent contractor. The wording of the section establishes that the relationship is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person and considering the ‘totality’ of the relationship. Not only the written contract, but also how the contract is carried out in practice, is to be considered
The right to disconnect operates to entitle an employee to refuse to monitor, read, and
respond to contact or attempted contact from their employer outside of their working
hours, unless the refusal is unreasonable in the circumstances. The right to disconnect
will be a workplace right recognised under the general protections provisions. It will also
be included as a clause in modern awards.
The Fair Work Commission (FWC) will have the ability to determine if the contact is
unreasonable by taking into consideration:
The new definition of casual employment will be as follows:
“A person is a casual employee of an employer if:
It is important to note that in some instances casual employees may have access to unfair
dismissal, regardless of whether the employee falls within the above definition or not. If a casual employee has been employed with the business for a minimum of 6 months (or 12 months for small businesses) and has worked a regular and systematic pattern of work, an employee can lodge an unfair dismissal claim. This is because there is a reasonable expectation that the employer will offer the same number of hours each week, and the employee will have a reasonable expectation of ongoing work.
Post 26 August 2024
A casual employee will remain engaged as a causal employee unless one of the below has occurred,
Employers are no longer required to make an offer to an employee that meets the
requirements of casual conversion. The process to request to convert to permanent
employment will be made by an employee by way of an employee choice notification.
Employee Choice
A casual employee will be required to give their employer a written notification request
to convert to either a full-time or part-time employee if,
Employer Responsibilities
An employer must provide the employee with a written response within 21 days of receiving a notification to convert. Before responding to the request, the employer has an obligation to consult with the employee, including the terms of acceptance of a request. The response in writing must include if the employer accepts or rejects the notification and the reason/s for the decision. If the employer is accepting the notification, if the employee will be part-time or full-time, the hours of work and when this change will take effect.
A workplace delegate is a person appointed or elected, in accordance with the rules of an
employee organisation, to be a representative for members of the organisation who work
in a particular enterprise.
As of 1 July 2024, the Fair Work Act 2009 introduced new rights and protections for
workplace delegates in relation to the performance of their role.
Workplace delegates have the right to:
The employer of a workplace delegate must not:
CCIWA’s Changes to Casual Employment information sheet provides more detailed information regarding the changes to casual employees and casual conversion, please see ERAC Information Sheets.
To find out more information, call the Employee Relations Advice Centre at CCIWA on 08 9365 7660 or email advice@cciwa.com.
Written By Chloe Hutchings – Employee Relations Adviser
CCIWA, Business Law WA and REEFWA has taken all reasonable care in preparing this document. The contents of this document do not constitute legal advice and should not be relied upon as such. Specific advice for your situation should be sought from CCIWA, Business Law WA or a professional adviser before any action is taken. Neither REEFWA, CCIWA nor Business Law WA accept responsibility for any claim that arises from any person acting or refraining from acting on the information contained in this document.
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