New employment laws come into place as of 26th August 2024 which all employers need to be aware of.
There are 3 main changes that cover an employees ‘right to disconnect’, the definition of a casual employee and the difference between an employee and an independent contractor.
The right to disconnect
The ‘right to disconnect’ rule applies to businesses with 15 or more employees. For employers with less than 15 employees, the law will take effect a year later on 26 August 2025.
What is the Right to Disconnect?
The ‘right to disconnect’ gives employees a right to refuse to monitor, read or respond to contact from their employer if outside their working hours, unless the refusal is found to be unreasonable.
When will a ‘right to disconnect’ be unreasonable?
An instance where the refusal may be unreasonable is if the contact is required by law. If there is no requirement by law – the following come into play when deciding if the refusal is unreasonable:
- the reason for the contact or attempted contact
- how the contact is made and the level of disruption it causes
- the extent to which the employee is compensated to remain available to perform work outside of their ordinary hours of work
- the period in which the contact or attempted contact is made or is compensated for working additional hours outside of the employee’s ordinary hours of work
- the nature of the employee’s role and the employee’s level of responsibility
- the employee’s personal circumstances, including family or caring responsibilities.
As an employer, there is no prohibition on you contacting your employees outside of hours of work. The right is on them whether they choose to respond.
We recommend businesses create and communicate their policy regarding this change with their employees and be as transparent as possible.
Casual Employment Changes
Rules about how casual work is defined, pathways to permanent employment, and employee and employer responsibilities have come into effect from 26th August, 2024.
A person is a casual employee if the employment relationship has no firm advance commitment to ongoing work. Casual employees are entitled to a casual loading or specific casual pay rate under an award, registered agreement, or employment contract.
Casuals will have a new pathway to full-time or part-time (permanent) employment under the National Employment Standards which allows eligible casuals to notify their employer in writing of their intention to change to permanent employment. Casuals can apply for permanent position if they have been employed for at least 6 months (12 months if employed by a small business) and they believe they no longer meet the requirements of a casual employee.
As an employer, you can only refuse the notice for certain reasons.
Changes to Independent Contractors
Many businesses hire both employees and independent contractors.
To work out if someone is a contractor or an employee, the true nature of the working relationship must be considered along with how the contract is performed in practice.
Applying the new definition may mean that some working relationships are characterised differently and may result in different rights and obligations for people affected.
A new method of testing whether someone is an employee or contractor is now referred to as the whole of relationship test (note that this test does not apply to sole traders or partnerships who have employees).
If there is an employment relationship, the worker is an employee of the business.
When considering the true nature of the relationship the following is now considered:
- the amount of control over how work is performed
- financial responsibility and risk
- who supplies the tools and equipment
- ability to delegate or subcontract work
- hours of work
- the expectation of work continuing.
If you’d like to break down and discuss any of the above changes to employment laws, reach out to the team to make an appointment.
