The news has been full of Industrial Relations changes of recent times, and some of the information has been a bit confusing at best and unnecessarily alarming at worst. We have summarised some of the most important changes and how you can prepare for them below.
Right to Disconnect – Industrial Relations Changes
From August 2024 (for Large Employers) and August 2025 (for Small Employers), Employees have a “Right to Disconnect” from work.
This means that employers are not permitted to require an employee to respond to emails or take phone calls on work related matters when they are not rostered to work. This also means that an employee can refuse to respond to an email or other communication from a customer or supplier and it is unlawful for the employer to take “adverse action” against them.
Currently the legislation permits imprisonment for breaching this provision but this was an oversight in the drafting and a Bill has been introduced into parliament to correct this error. So, jail is not a risk, just a fine.
There are exemptions to this new “prohibition” in that an employee is only able to refuse if such a refusal is “reasonable”. The following is a non-exhaustive list of considerations when deciding if a refusal to accept communication is “unreasonable” or “reasonable”:
- The reason for the contact
- How contact is made
- The extent to which an employee is compensated to remain available for work when the contact is made or for working additional hours outside of their ordinary rostered hours
- The employee’s role and level of seniority
- Any relevant personal circumstances such as family or caring responsibilities.
Essentially the above exemptions mean that an employer can still contact an employee regarding their availability to work an additional shift, or to cancel a shift. An employer can still require a Store Manager or Production Manager to respond to texts and messages from employees about issues at work as long as they are paid a salary for such responsibilities.
The intent is to prevent employers from “loading up” employees with work when they are at home when they are not paid enough to compensate them for that work.
Casual Employees – New Definition
From the 26 August 2024 a new definition of “Casual” employee is being inserted into the Act. At the same time, a new process for “Casual Conversion” is being included.
The new definition states that an employee will only be a casual employee where:
- The relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and
- The employee is entitled to a casual loading or rate of pay for casual employees under a fair work instrument or contract of employment.
But, there are factors which must be assessed when determining if there was a “firm advance commitment to continuing and indefinite work” beyond what is written in the contract of employment. These include:
- The “real substance, practical reality and true nature of the employment relationship”;
- Whether a firm advance commitment exists, which may be found in a contract of employment, or in the form of a mutual understanding or expectation;
- An inability of the employer to elect to offer work or of the employee to accept or reject work (and whether this practically occurs);
- Whether there are permanent employees performing the same kind of work at the workplace; and
- Whether there is a regular pattern of work for the employee.
So even if your contract of employment states explicitly that there is no guarantee of ongoing or regular employment, the test is determined on the actual working reality of the relationship. If the rosters and pay records show that the employee has worked every week for the last 6, or 12 months, then that person is not a “casual” for the purposes of the Act and will start to accrue annual leave, personal/carer’s leave, and have an entitlement to paid public holidays.
The casual conversion process will also change so that the employee initiates the process and the employer only has to respond, but given the above changes to the definition, if you are going to employ someone to work a regular roster, they will have to be part time anyway so conversion will not be an issue.
Wage Theft – Industrial Relations Changes
The criminalisation of Underpayment of Wages has received a significant amount of publicity and will now be known as “Wage Theft” in recent industrial relations changes.
New maximum penalties will apply for companies that are not small businesses (employ more than 15 staff). The maximum penalties have increased to $3 Million for body corporates and up to 10 years imprisonment for individuals.
Laws only apply to offences committed from 1 January 2025 and inadvertent or unintended underpayments are not captured by the new laws. Essentially these laws are designed to capture those organisations whose business model relies on employees being underpaid in order to turn a profit. We are not going to name names here, but if you cast your mind back to some of the big headlines from the last few years, you will get the picture of who this is aimed at.
NBIA Members receive free unlimited phone and email IR & HR support as part of their membership. If you need assistance understanding the recent industrial relations changes, please contact the NBIA head office on 1300 557 022 or via email.