Greatest Good March 2024 Regulatory Update

Closing Loopholes workplace laws

The Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Closing Loopholes No. 2) legislation was passed in the House of Representatives. This comes after a last-minute deal the Government struck with the Greens and independent Senators, resulting in various changes to what was originally proposed.

The Bill makes significant further reforms to the Fair Work Act 2009 including changes to:

• the definition of employee and employer
• the definition of a casual employee and the right to convert to permanent employment
• minimum standards and dispute resolution for employee like workers performing digital platform work and regulated road transport industry contractors
• independent contractor protections
• right of entry to organisations for suspected underpayments
• increase maximum penalties for underpayments
• the statutory right for employees to disconnect outside of work hours
• various other changes

The Right to disconnect has been inserted into the Fair Work Act. It gives employees the right to refuse to monitor, read or respond to contact (or attempted contact) from an employer outside their working hours, unless that refusal is unreasonable. The right also extends to contact (or attempted contact) outside the employees working hours from third party if work-related (i.e. customers or clients).

As expected with last-minute legislation, some of the language and definitions are vague, but the Bill lists the following factors to be considered in determining whether an employee’s refusal to be contacted is unreasonable:

• the reason for the contact or attempted contact
• have a contact or attempted contact is made in the level of description it causes the employee
• the extent to which the employee is compensated (including non-monetary compensation) to remain available to perform work or to be contacted, awful working additional hours, outside ordinary working hours
• the nature of the employee’s role and level of responsibility
• the employee’s personal circumstances (including family or caring responsibilities)

If there is a dispute regarding the employee’s right to disconnect, the parties must first attempt to resolve it within the workplace. If it is not resolved, the employee or employer can apply to the Fair Work Commission to make an order to stop refusing contact, to stop taking certain actions, or to otherwise deal with the dispute. Penalties can be imposed if an order is breached.

It will be a workplace right for the purposes of the general protection regime under the Fair Work act, giving employees an additional claim if they allegedly suffer detriment for refusing to monitor, read or respond to contact.

It was noted by the Greens that the purpose of the reform is about “improving the conversations about the boundary around our working time” and should be considered as part of an employer’s general obligation to provide a safe and healthy workplace so far as it is reasonably practicable.

The legislation will generally commence six months after Royal Assent or earlier by proclamation, with various other effective dates as noted below.

• 26 August 2024
  • the right to disconnect will commence for non-small business employers
  • new definitions of 'employee', 'employer' and 'casual employee' apply
  • casual employees will be able to change to permanent employment under a new 'employee choice' process
• 1 November 2024
  • regulated labour hire arrangement orders can commence operation
• 26 February 2025
  • the Fair Work Commission will determine and replace the model flexibility, consultation and dispute resolution terms for enterprise agreements
• 26 August 2025
  • the right to disconnect will apply to small business employers

Paid Parental Leave Amendment (More Support for Working Families) Act 2024

On 18 March 2024, the Paid Parental Leave Amendment (More Support for Working Families) Bill 2023, passed the Senate unamended. It will provide an extra two weeks of federally-funded paid parental leave this year, lifting the entitlement to 22 weeks (from the existing 20 weeks) from 1 July 2024.

The entitlement will increase again to 24 weeks from July 2025 and 26 weeks from July 2026.

The period of leave reserved to one parent will also increase by one week in July 2025 and by a further week in July 2026, making the total leave which must be taken by one parent four weeks from July 2026. 

The period of leave which can be taken concurrently by both parents is also increasing from two weeks to four weeks. Single parents are entitled to the whole period of leave.

Subsequent to that change, the Federal Government announced that it will fund superannuation payments of 12% on government paid parental leave with effect from July 2025.

Disclaimer: This does not purport to be comprehensive or to render legal advice. You should not act based on any information contained in this publication without first obtaining specific professional advice. Consult your legal advisor to determine if this applies to you.