06/08/2024
In addition to recent changes around fixed term contracts, there are a significant number of employment law changes coming into effect starting in July and continuing through to 1 January 2025. We have briefly outlined these below, and we encourage organisations to contact us to ensure their operations are compliant with each change.
Changes from 1 July 2024
Delegates rights clause
- Protection and additional rights provided to workplace delegates under section 350C FW Act (in effect since December 2023)
- New rights include:
- reasonable communication with union members and potential members about their workplace interests
- access to the workplace and workplace facilities
- in some situations, right to paid time for training
- As a right in the Fair Work Act, employers cannot take adverse action against another a workplace delegate because they have or exercise their rights as a workplace delegate.
- From 1 July a workplace delegate clause has been included in all Modern Awards and must be incorporated in to enterprise agreements voted on after 1 July 2024.
Superannuation and wage increase
- Superannuation guarantee increased from 11.0% to 11.5%
- Minimum Award wages and National Minimum Wage increased by 3.75%
Protection for labour hire employees
- Contractors can apply to the Fair Work Commission to receive a protected rate of pay that is equal to an employee’s “full rate of pay” that they would receive if working directly for a host employer – this would include incentive-based payments, bonuses, loadings, allowances, overtime and penalty rates. A protected rate of pay will only apply if the Fair Work Commission has made an order applying it.
Changes from 26 August 2024
Right to disconnect
- Prevents employees from being punished for refusing to read, monitor or respond to contact outside of their working hours from their employer.
- Refusal to connect must not be unreasonable and the Fair Work Act sets out considerations for this, including if employees are paid an amount of remuneration to be available.
- Emergency contact or contact regarding a change or work condition is considered reasonable contact.
Changes to definition of “employee” impact for contractors
- There is a new definition of “employee” which now requires review of the “real substance, practical reality and true nature” of the relationship between the parties – that is, the totality of the relationship not simply what the terms of a contract say, but how it is performed in actuality.
- This is a move away from the previous High Court position which focused the assessment as to whether a worker is an “employee” or “contractor” on the terms of the contract.
Change to definition of casual employee
- An employee is a casual employee when the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work and the employee is entitled to casual loading or a specific rate of pay for casual employees. There are a number of factors included in the Fair Work Act to establish whether there is a “firm advance commitment”.
Changes for casual conversion
- Eligible employees may notify employers to change to permanent if they:
- have been employed for least six months (12 months for small businesses); and
- believe they no longer meet the requirements of the new casual employee definition
- Employers must consult with employees prior to conversion.
- Employers must respond in writing within 21 days of employee notification.
- If conversion is refused, employers must include reasoning and it can only be refused on certain circumstances.
- The obligation to offer casual employment has been removed.
Casual Employment Information Statement
- The Casual Employment Information Statement must be provided to all new casual employees.
Enterprise agreement changes
- Employers must ensure the Statement of Principles of Genuine Agreement are followed when making an agreement – this includes new requirements for bargaining and vote processes.
Changes from 1 January 2025
Criminalising intentional underpayments
Employers are said to have committed an offence if:
- they are required to pay an amount to an employee, or on behalf of or for the benefit of an employee under the Fair Work Act or any other relevant industrial instrument; and
- they intentionally engage in conduct that results in a failure to pay the required amount on or before the day when the required amount is due for payment.
Exceptions such as unintentionally or mistakenly underpaying employees are available.
These changes have wide ranging impacts on employers and employees. Employers should review employment arrangements, employment contracts and policies and procedures to ensure compliance with these changes.
Griffin Legal’s employment advisory team can work with your organisation to implement these changes into your organisation’s practices.