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.

Under the new definition of casual employee in the Fair Work Act 2009 (Cth), an employee will be a casual employee where:

• the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and
• the employee is entitled to a casual loading (which may arise from a fair work instrument or employment contract).

In determining whether there is a “firm advance commitment”, a court will have regard to a range of non-exhaustive factors. These include:

• the real substance, practical reality and true nature of the employment relationship;
• the terms of a contract of employment or a mutual understanding or expectation between the employee and employer;
• whether there is an inability of an employer to elect to offer work or an inability for an employee to accept or reject work (and whether this occurs in practice);
• whether it is reasonably likely there will be future availability for continuing work of the kind usually performed by the employee;
• whether there are other permanent employees performing the same kind of work in the enterprise; and
• whether there is a regular pattern of work.

The avenues for casual conversion have been amended. There is one single avenue for casual employees to convert to permanent employment which is called the “employee choice” avenue because it is initiated by the employee. An employee will be eligible to request conversion to permanent employment after a period of 6 months (or 12 months for an employee of a small business). A request for conversion can be refused on fair and reasonable operational grounds.

The Fair Work Commission will have power to deal with disputes regarding casual conversion using its usual dispute resolution powers (such as by mediation, conciliation, making a recommendation, expressing an opinion or arbitration).

The amendments to the definition of casual employment see a return to the uncertainty around the casual classification which existed prior to the amendments to the Fair Work Act which have operated for the past three years.

It will be necessary for employers to evaluate a larger range of factors to assess if there is a “firm advance commitment” to continuing and indefinite work. Employers will need to monitor the use of casual employees to ensure that casual work does not fall into patterns of regular and consistent hours.

Employers will need to ensure that relevant personnel are trained on the changes to the casual conversion process.

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.

The Fair Work Commission will have the power (on its own motion or an application) to set minimum standards in the road transport industry.

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.

The Fair Work Commission is also empowered to make orders regarding the supply chain in the road transport industry. An order may set standards for transport contractors, employee-like workers and other persons in the road transport contractual chain. This may include terms about any of the following matters:

• payment times;
• fuel levies;
• rate reviews;
• termination, including one way termination for convenience; and
• cost recovery.

A regulated road transport contractor will be able to bring an unfair termination claim if their services contract is terminated.

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

The reforms will substantially increase regulatory obligations for companies in the road transport industry.

Companies may need to grapple with applying certain minimum terms and conditions to its contractors – a group of workers who have not historically fallen within the ambit of the Fair Work Act 2009 (Cth).

Due to the new ‘unfair termination’ jurisdiction, companies will need to ensure there is a valid reason for termination related to the person’s capacity or conduct and the processes in the ‘Road Transport Industry Termination Code’ are 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.

A union will have the power to go to the Fair Work Commission for an ‘exemption certificate’ which will waive the minimum 24 hours’ notice requirement for entry into a workplace if it concerns the underpayment of wages or other monetary entitlements of its members.

The Fair Work Commission can only issue the exemption certificate if it reasonably believes that advance notice of the entry given by an entry notice would hinder an effective investigation into the suspected contravention or contraventions.

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.