An employee can refuse to monitor, read or respond to contact (or attempted contact) from an employer or a third party outside of their ordinary working hours, unless the employee’s refusal is unreasonable.

Factors which may determine whether a refusal is unreasonable include:

• the reason for the contact;
• how the contact is made;
• the level of disruption caused by the contact;
• compensation received by the employee for remaining available to perform work during the period or for working any additional
• hours outside of their ordinary hours;
• the nature of the employee’s role and level of responsibility; or
• the employee’s personal circumstances (including family or caring responsibilities).

If there is a dispute about the application of these provisions, the employee and employer must attempt to resolve it at a workplace level. If they cannot, the employee or employer may apply to the Fair Work Commission to deal with the dispute and make orders.

The Fair Work Commission may make the following orders:

• an employee stop refusing contact with the employer (i.e. they need to respond outside of their ordinary hours);
• an employer not take disciplinary action against an employee for refusing contact from the employer; or
• the employer cease contact with the employee outside of their ordinary hours.

The Fair Work Commission will be tasked with preparing written guidelines about the operation of the right to disconnect.

Employers should:

• survey managers and employees to ascertain practices within the organisation for asking employees to work outside of their usual hours;
• review employment contracts (specifically, offset and salary/remuneration clauses and clauses regarding duties) and existing policies regarding contact outside of ordinary hours; and
• ensure managers are trained in and are aware of the new regulations to reduce exposure to litigated claims for ‘stop’ orders.

The new provisions are workplace rights under part 3-1 of the Fair Work Act 2009 (Cth), meaning an employer cannot take adverse action against an employee for exercising their right to disconnect.

The Fair Work Commission is empowered to set binding minimum standards for ‘employee-like” workers who perform digital platform work. The standards will be similar to a modern award. A minimum standards order may include any of the following matters:

• payment terms;
• deductions;
• record-keeping in relation to specified matters;
• insurance;
• consultation;
• representation;
• delegates’ rights; and
• cost recovery.

There are certain matters which cannot be included in a minimum standards order, such as overtime rates, rostering arrangements and matters that are primarily of a commercial nature.

A minimum standards order may be made by the Fair Work Commission on its own initiative or on application by an organisation who represents a worker or business who would be covered by the proposed minimum standards order, the business who may be covered or the Minster for Employment and Workplace Relations.

Employee-like workers who have been performing work on a regular basis through a digital labour platform for a period of at least 6 months and who earn less than the ‘contractor high income threshold’ will be able to make an unfair deactivation claim in the event that their access the digital labour platform is deactivated. This will be similar to the existing unfair dismissal jurisdiction available to employees.

There is also an avenue for consent-based collective agreements.

If a minimum standards order is made, it will mean that non-employee gig workers will be subject to extensive regulation concerning the terms and conditions of their engagements

The new unfair deactivation jurisdiction - means that processes and procedures for terminating engagements should be reviewed to ensure there is a valid reason for deactivation and the Digital Labour Platform Deactivation Code is followed.

Employment will be defined for the first time in the Fair Work Act 2009 (Cth) so that the courts must have regard to the “real substance”, “practical reality” and “true nature of the relationship” when considering whether a worker is an independent contractor or an employee.

The amendment expressly reverses the approach of the High Court in 2022, which ruled that primacy is to be given to the written terms of the contract when determining the employee/independent contractor classification. Under the new approach, how the contract is performed in practice must be considered by the court.

It will also be possible for independent contractors to dispute unfair contract terms in the Fair Work Commission. The Commision will have power to set aside contracts.

The amendment reverses the High Court decisions of 2022 and reinstates the previous common law test which was applied prior to these decisions. This will create more uncertainty for companies when they classify workers.

Companies will need to consider a multi-factorial test when classifying its workers and have ongoing regard to how the contract plays out in practice.

We anticipate there will be more claims for unpaid employee entitlements on the basis that a worker was misclassified as a contractor when they should have been an employee.

We recommend that companies review their independent contracting arrangements and how these relationships operate on a day to day basis.

Companies should also review template agreements to ensure there are no terms which may deemed unfair contract terms. Examples of unfair contract terms would include remuneration that is less than an employee would receive for performing the same work, restraints on the contractor or unreasonable requirements in terms of working hours.

This amendment effectively removes any risk that employees’ terms and conditions in an enterprise agreement are negatively impacted in an intractable bargaining workplace determination. Employers can be worse off following a declaration. It will no longer be possible for employers to use the arbitration process as an incentive for employees to reach agreement.

Employers will need to carefully consider their industrial strategy and alternative points of leverage in the bargaining process.