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Fair Work Act – FED

1 July 2024 by By Lawyers

The final tranche of amendments to the Fair Work Act 2009, under the Fair Work Act Amendment (Closing Loopholes) Act 2024 apply from 1 July 2024.

The changes introduce a detailed definition of casual employment, and a limited right to disconnect from work.

Casual employment under the Fair Work Act

Section 15A of the Fair Work Act 2009 sets out a general rule for when an employee is a casual, along with detailed guidance for applying the rule, and some exceptions to it.

The general rule is that an employee will be a casual if:

  • the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and
  • the employee would be entitled to a casual loading or a specific rate of pay for casual employees under the terms of a fair work instrument if the employee were a casual employee, or the employee is entitled to such a loading or rate of pay under the contract of employment.

Whether the relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work is to be assessed on the basis:

  • of the real substance, practical reality, and true nature of the employment relationship; and
  • that a firm advance commitment can be in the form of the contract of employment or, in addition to it, in the form of a mutual understanding or expectation between the employer and employee.

The section sets out a number of considerations that may indicate the presence of such a commitment, and includes notes about how the commitment might be manifested.

There are also some specific exceptions to the general rule for academic and teaching staff at higher education institutions.

The right to disconnect under the Fair Work Act

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.

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 has been updated accordingly.

Filed Under: Australian Capital Territory, Employment Law, Federal, Legal Alerts, New South Wales, Northern Territory, Publication Updates, Queensland, South Australia, Tasmania, Victoria, Western Australia Tagged With: employee, employer, employment agreement, Employment law, Fair Work Act, fair work commission

Closing loopholes – FED

8 January 2024 by By Lawyers

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.

Filed Under: Australian Capital Territory, Employment Law, Federal, New South Wales, Northern Territory, Queensland, South Australia, Tasmania, Victoria, Western Australia Tagged With: employees, employers, Employment law, Fair Work Act, fair work commission

Sexual harassment – FED

29 November 2021 by By Lawyers

New provisions for the prevention of sexual harassment and bullying in the workplace have commenced.

Part 6-4B of the Fair Work Act 2009 (Cth) now provides that workers can apply to the Fair Work Commission for orders to stop sexual harassment as well as workplace bullying. To be eligible to make an application a worker must be employed in a constitutionally-covered business.

There is no time limit for making an application for an order to stop bullying or sexual harassment at work. Section 789FF of the Fair Work Act 2009 provides that for the Fair Work Commission to be able to make an order there needs to be a risk that the applicant will continue to be bullied or sexually harassed at work. If the worker no longer has a connection to the workplace, an order cannot be made as there is no future risk of the relevant behaviour occurring.

‘Sexually harass’, for these purposes, has the same meaning as in s 28A of the Sex Discrimination Act 1984 (Cth).

Examples of sexual harassment include:

  • inappropriate behaviour including staring, leering, loitering or unwelcome touching;
  • suggestive comments, jokes or gestures based on sex or a person’s private life or body;
  • communicating sexually explicit material in person or electronically.

The objectionable conduct must occur at work, which is not defined but is tied to work activities wherever they occur and is not limited to the confines of a physical workplace. It includes entering, moving about and leaving a workplace.

The application needs to be lodged with the Fair Work Commission using the prescribed form: Application for an order to stop bullying or sexual harassment (or both).

The employer needs to respond within 7 days of being served using the prescribed form: Response from an employer or principal to an application for an order to stop bullying or sexual harassment (or both).

The alleged perpetrator will receive a copy of the application and be invited to respond within 7 days using the prescribed form: Response from a person named as having engaged in bullying or sexual harassment (or both).

All the prescribed forms are available in the Workplace bullying and sexual harassment folder on the matter plan in the By Lawyers Employment Law publication. The commentary has also been updated accordingly.

Filed Under: Australian Capital Territory, Employment Law, Federal, Legal Alerts, New South Wales, Northern Territory, Publication Updates, Queensland, South Australia, Tasmania, Victoria, Western Australia Tagged With: employment, Employment law, fair work commission, sexual harassment, Workplace bullying

Employment Law – Domestic violence leave

31 July 2018 by By Lawyers

From 1 August 2018 all employees under modern awards – full-time, part-time and casual – have an entitlement to 5 days unpaid leave to deal with family or domestic violence issues.

The Fair Work Commission decided in their four-yearly review to add a new model term into all modern awards. The Full Bench concluded that:

…retaining employment is an important pathway out of violent relationships. Conversely, a lack of financial security has an adverse impact on the ability to recover from family and domestic violence. Absent an entitlement to unpaid family and domestic violence leave, employees will be reliant on the goodwill of their employer to obtain the leave necessary to deal with the various issues arising from family and domestic violence while remaining in employment.

The model clause will allow unpaid leave for family or domestic violence reasons which are defined as… violent, threatening or other abusive behaviour by a family member that seeks to coerce or control the employee and that causes them harm or to be fearful.

The unpaid leave may be taken for such reasons as to make safety arrangements for the employee or a family member, to attend court, or to access police services.

Employees are not required to access paid holiday or sick leave first before taking the unpaid domestic violence leave.

The leave is available in full at the start of each 12-month period of the employee’s employment, does not accrue and is available to full-time, part-time and casual employees.

Our Employment Law guide has been updated.

Filed Under: Employment Law, Federal, Legal Alerts, Publication Updates Tagged With: Employment law, fair work commission, family and domestic violence, modern award, unpaid leave

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