Is your business aware of what you need to change or adapt to meet your new legal obligations?  In this article, our partners at Australian Business Lawyers & Advisors run through some highlights of new legislation every business owner should know.

The new right to disconnect

This is not a blanket ban on employers contacting people outside of work hours and will depend on the nature of the job and individual employment contracts.  Employers and employees can go to the Fair Work Commission to deal with disputes. Reasonable test will apply here but it is inherently grey and will depend on circumstances.

What you need to do: Consider the forms of outside working hours communications you currently use in your business and whether these could be claimed to be ‘unreasonable’ by an employee.  Educate your managers on expectations and why. Ensure you communicate this to all staff and decide if a policy is required. Potentially amend contracts of employment to cover this if the expectation is reasonable that they would be contacted out of work hours.

New definition of Casual Worker

The existing definition of a ‘casual employee’ in the Fair Work Act is being replaced with a new one. This will add a layer of complexity in your business. The new definition takes into account the reality of the employment relationship and working patterns, not just the terms of the contract.

There are many factors that will play into determining if a worker is truly a casual and it is important to look at all of these factors, not simply one.  This probably makes this definition the trickiest and we strongly advise you seek help if you are unsure as the penalties for businesses getting it wrong are significant.

All current casuals in your business will stay as casuals as this new definition will not apply, however they will have the right to request to convert to permanent if they do meet the requirements. All new casuals from 26 August 2024 will need to meet the new definition of a casual. Get it wrong and you could be subject to civil penalties.

What you need to do: There is now a Casual Employment Information Statement that must be given to casual employees on commencement of employment and at the employee’s 12-month anniversary. Put in steps to make sure you set this up as a reminder to avoid non-compliance. For all new hires, you will need to review contracts and ensure it is a genuine casual position. We suggest carrying out a casual employment audit to check all are correctly casuals, and whether you should be offering conversions.

Casuals are not always the easier option for employers.  There are now implications for your business if you get this employment relationship wrong and you could face an unfair dismissal if things end up that way.

New definition of employee

To determine whether a person is an employee or a contractor it will no longer be sufficient to simply look to the terms of the written contract. Many factors will go into this, so again, check who in your business is a ‘contractor’ and whether this is truly the correct relationship.

From 26 August 2024 this will come into effect but if you have contractors on your books, they will accrue employment liabilities from 27 February 2024.

What you need to do: Review the current use of independent contractors to assess the likelihood that contractors would be considered employees under the new definition. To help you review your current use of contractors against the new ‘employee’ definition have a look at the Independent Contractor Assessment Tool by scanning the QR code and downloading if from the ABLA website.

These are just the tip of the iceberg on legislation changes you should be across.  For more information, including new penalties for wage compliance, using labour hire workers, delegate rights and bargaining changes, watch this one-hour webcast on Closing the Loopholes where Directors from Australian Business Lawyers & Advisors discuss these changes in more detail and suggest ways for your business to prepare.

As a member of ASGA you are entitled to call the Workplace Advice Line (a team of advisors that work with our team) on 1300 565 846 if you have a question regarding your workforce or managing an employee. One call could save you thousands in legal fees. Time to get your books in order before a regulator knocks on your door.