The new ‘Closing Loopholes’ laws
Recent changes to the Fair Work Act 2009 (Cth) have taken effect as part of the new ‘Closing Loopholes’ laws[1]. Some of these changes are discussed below.
Changes to Casual Employment
The Amending Act defines casual employment as a relationship with no firm advance commitment to ongoing work, where an employee benefits from casual loading.
In determining whether there exists a firm advance commitment or not, an assessment will be made on the real substance, practical reality, and true nature of the employment relationship alongside other factors.
Casual employees will remain casual other than in circumstances where they undergo a conversion process, Fair Work Commission order, or accept an alternative employment offer.
Casual Conversion
Under the Amending Act, a casual employee can notify their employer in writing of their intention to change to permanent employment where:
• They have been employed for 6 months (12 months if employed by a small business), and
• believe they no longer meet the requirements of the casual employee definition.
Right to Disconnect
From 26 August 2024, non-small business employees have had the right to refuse contact outside of working hours unless refusal is unreasonable. This means an employee can refuse to monitor, read, or respond to contact from an employer.
These changes will take effect for small business employers on 26 August 2025.
Independent Contractor Changes
The Amending Act has introduced a new definition of ‘employment’ to help distinguish between the meaning of ‘employer’ and ‘employee.’[2] This is utilized by some businesses in determining whether a worker is an independent contractor or an employee.
From 26 August 2024, the ‘whole of relationship’ test will be used in determining whether someone is a contractor or an employee. This considers the real substance, practical reality, and true nature of the employment relationship.
In determining whether someone was a contractor or employee prior to 26 August 2024, the ‘start of relationship’ test will apply. This will honor the original employment agreement between the parties, whether in writing, made verbally, or a mix of both.
[1] Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024 (Cth) (‘the Amending Act’).
[2] Ibid s 15AA.
If you are a parent who is considering how these changes will apply to your individual circumstances, we can assist you.
Disclaimer
The above does not constitute legal advice, but is information which may be of general interest. Beswick Lynch Lawyers will not be held liable or responsible for any claim, which is made as a result of any person relying upon the information contained in this publication.