ByLawyers News and Updates

Right to disconnect – FED

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The right to disconnect under the Fair Work Act 2009 applies from 26 August 2024 for non-small business employers and from 26 August 2025 for small business employers.

Section 333M of the Act provides that an employee can refuse to monitor, read, or respond to contact, or attempted contact, from their employer or a third party if the contact relates to their work and is outside their working hours, unless the refusal is unreasonable.

Sub-section 333M(3) sets out a non-exclusive list of matters that can be taken into account to determine whether the refusal is unreasonable, including:

  • The reason for the contact;
  • How the contact is made and how disruptive it is to the employee;
  • The extent to which the employee is compensated to be available or to work outside their normal hours;
  • The nature of the employee’s role and their level of responsibility;
  • The employee’s personal circumstances including any family or caring responsibilities.

All modern awards  are required to include a right to disconnect provision. See the Fair Work Commission‘s webpage for more information on variations to awards.

The right to disconnect is a workplace right for the purpose of s 341 of the Act, which means the adverse action protections apply.

The Fair Work Commission can deal with disputes about the right to disconnect, including by making orders to stop an employee refusing contact or an employer requiring it. Contravention of an order is a civil remedy provision under Part 4-1 of the Act for which fines apply.

The commentary and precedents in the By Lawyers Employment Law guide have been updated accordingly.

Closing loopholes – FED

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A raft of amendments closing loopholes in the Fair Work Act 2009 commenced on 15 December 2023.

Changes introduced by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 include:

Redundancy

Entitlement to a redundancy payment is extended to employees of a small business, being one with fewer than 15 employees, in certain circumstances. Generally, such businesses are exempt from the requirement to pay redundancy. However, under the amended provisions employees may be entitled if the employer is bankrupt or in liquidation and the  only reason the exemption applies is that the trustee in bankruptcy or liquidator has reduced the number of employees to less than 15.

Labour Hire

New provisions in Part 2-7A of the Fair Work Act restrict labour hire arrangements and allow employees or unions to apply to the Fair Work Commission for regulated labour hire arrangement orders prescribing the rates of pay that employees under a labour hire arrangement must receive. However, any such orders made by the Commission have no effect until at least 1 November 2024. The new provisions also introduce strict anti-avoidance provisions and civil penalties. There are some exceptions to the Commission’s ability to make orders, including for small business employers.

Unlawful dismissal

Prohibited grounds for dismissal are extended to include the fact that an employee is subject to domestic or family violence.

Right of entry

The amending Act removes the requirement for state or territory work health and safety representatives to hold an entry permit before entering a workplace. However that innovation is a subject to review after 9 months.

Further amendments

The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 includes additional provisions criminalising the intentional underpayment of wages by employers. Those provisions do not commence until 1 January 2025.

Publication updates

The By Lawyers Employment Law commentary has been updated accordingly. The amending Act’s further provisions will be the subject of additional publication updates in due course, as required.

Domestic violence leave – FED

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Family and domestic violence leave entitlements are extended to small business employees from 1 August 2023.

Under the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 paid leave replaced the previous entitlement to unpaid leave for all non-small business employees from 1 February 2023. That entitlement is now extended to small business employees, so it covers everyone. A small business is one with less than 15 employees.

Full-time, part-time, and casual employees are entitled to 10 days of paid family and domestic violence leave in every 12-month period of employment. It is not calculated on a pro-rata basis for casual employees and is all available up-front, which means a new employee has an immediate entitlement to the full ten days. The leave does not accumulate if not taken.

The leave can be taken for any purpose relating to the impact of family and domestic violence, which might include relocating, attending court, or attending medical, legal, counselling, and financial advice appointments.

Employers cannot include information in an employee’s pay slip identifying the type of leave paid.

Family and domestic violence is defined as violent, threatening, or other abusive behaviour by an employee’s close relative, current or former intimate partner, or a member of their household that both seeks to coerce or control them and causes them harm or fear.

The leave can be taken during a period of personal or carer’s leave, or annual leave.

The notice and evidence requirements of s 107 of the Fair Work Act 2009 apply, including the requirement for the employer to maintain confidentiality: s 106C.

See the Fair Work Ombudsman website for more information.

The By Lawyers Employment Law publication has been updated accordingly.

Paid parental leave – FED

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Recent amendments to the Paid Parental Leave Act 2010 (Cth) make payments more accessible, flexible, and gender-neutral for Federal system employees.

Under the current scheme, either parent and other eligible carers can claim up to a total of 18 weeks of paid parental leave. This increases to 20 weeks from 1 July 2023. Payments can only be claimed in the first two years after the child’s birth or adoption. The scheme is funded by the Commonwealth, so a claim for payments is made to Centrelink, not the employer. The entitlement extends to employees who are full-time, part-time, casual, seasonal, contractors, or self-employed.

The amendments:

  • Enable families to decide which parent will claim first and how they will share the entitlement and are not limited to a small class of claimants. Allowing households to decide how best to care for a child.
  • Provide greater flexibility, with claimants allowed to take the available leave in multiple blocks of as little as a day at a time with no requirement to return to work to be eligible.
  • Impose a new $350,000 family income limit for eligibility, under which families can be assessed if an individual applicant does not meet the individual income test.
  • Expand the eligibility requirements to allow a father or partner to receive paid parental leave, regardless of whether the birth parent meets the income test or residency requirements, or is serving a newly arrived resident’s waiting period.

Payments are at the rate of the national minimum wage. Employers are not obliged to make superannuation contributions during the leave period. Paid parental leave does not count as paid leave for the purposes of the National Employment Standards (NES) and, therefore, does not count as service for the purposes of other entitlements.

The By Lawyers Employment Law publication has been updated accordingly.

Family and domestic violence leave – FED

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Family and domestic violence leave entitlements change for many employees from 1 February 2023, with paid leave replacing the previous entitlement to unpaid leave.

Full-time, part-time, and casual employees of non-small business employers, being those with 15 or more employees on 1 February 2023, are entitled to 10 days of paid family and domestic violence leave in every 12-month period of employment. It is not calculated on a pro-rata basis for casual employees and is all available up-front, which means a new employee has an immediate entitlement to the full ten days. The leave does not accumulate if not taken.

The same entitlement will apply to employees of small business employers, being those with less than 15 employees on 1 February 2023, from 1 August 2023. Until then, employees of small businesses remain eligible for the existing entitlement of 5 days of unpaid family and domestic violence leave.

The leave can be taken for any purpose relating to the impact of family and domestic violence, which might include relocating, attending court, or attending medical, legal, counselling, and financial advice appointments.

Employers cannot include information in an employee’s pay slip identifying they type of leave paid.

Family and domestic violence is defined as violent, threatening, or other abusive behaviour by an employee’s close relative, current or former intimate partner, or a member of their household that both seeks to coerce or control them and causes them harm or fear.

The leave can be taken during a period of personal or carer’s leave, or annual leave.

The notice and evidence requirements of s 107 of the Fair Work Act 2009 apply, including the requirement for the employer to maintain confidentiality: s 106C.

See the Fair Work Ombudsman website for more information.

The By Lawyers Employment Law commentary has been updated accordingly. Further updates will be applied when the entitlement extends to all employees in August.

Adverse action – FED

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The recent employment law case of Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71 considered adverse action under the Fair Work Act 2009 and the obligation on an employer to establish that a decision affecting a worker is not contrary to the prohibitions in the Act.

Adverse action is covered in the By Lawyers Employment Law guide.

Sections 340 to 345 of the Fair Work Act prevent an employer from taking adverse action, as defined in s 342, against an employee who exercises a workplace right, defined in s 341.

For example, if an employee is dismissed, which constitutes adverse action being taken against them, because they made a complaint against their employer, which constitutes their exercise of a workplace right, then the employee may be able to bring a general protections claim against the employer.

In the recent case Qantas made a decision, while its fleet was grounded for the pandemic, to outsource ground handling operations at Australian airports. That resulted in Qantas employees losing their jobs to external providers. The union sought reinstatement of the employees on the basis that Qantas’ decision constituted adverse action on a number of bases. Qantas denied this and argued that the decision was made for operational business reasons.

The court found for the employees on one of the adverse action grounds, namely that the real reason for Qantas’ action in standing down employees was to prevent the exercise of a workplace right, being their right to negotiate a new Enterprise Bargaining Agreement which fell due shortly afterwards. Interestingly, that meant the court upheld the adverse action claim on the basis of a workplace right that did not exist at the time of the decision, but may exist at some future point in time.

The court looked in detail at how the decision was made, what the company took into account, and its knowledge of the future workplace right. The court found that Qantas knew it was circumventing the future right, whereas if it had no such knowledge the outcome may have been different.

The case may go on appeal, but it serves to remind workers of the robust nature of their rights under the Act and employers of the extent of their obligations.

This case will be added to the By Lawyers 101 Employment Law Answers publication and any developments on any appeal will be monitored.

Annualised salaries – Employment- FED

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From 1 March 2020, new clauses for annualised salaries commence in 21 modern awards. These have broad coverage, including for white-collar industries, such as the Clerks – Private Sector Award 2010, Legal Services Award 2010 and the Banking, Finance and Insurance Industry Award 2010. The commentary in the By Lawyers Employment law guide has been updated accordingly.

An annualised salaries clauses enables an ‘annualised wage arrangement’ to be made in a modern award. Employers can choose to annualise an employee’s wages over a 12 month period. This means they pay a fixed amount in satisfaction of the modern award requirements. The fixed amount includes all entitlements such as weekly pay, allowances, overtime rates, other penalty rates and annual leave loading.

Not all modern awards contain arrangements for annualised salaries. For those that do, an annualised payment clause applies with some variation depending on the industry.

Annualised salary clauses apply only to full-time employees. However they have no effect where a full‑time employee is being paid standard wages and benefits in accordance with the applicable award. They only apply to an ‘annualised wage arrangement’.

The annualised wage must be no less than the amount the employee would have received under the award for the work performed over the year for which the wage is paid.

When making arrangements for annualised salaries under the applicable modern awards, employers are required to comply with requirements for notification, record keeping and wage reconciliation.

See the By Lawyers Employment law guide for more information on the new clauses, the modern awards to which they apply and the employer requirements.

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