‘Closing Loopholes’ New Legislation!

The Australian Government has now passed new workplace laws as part of its ‘Closing Loopholes’ legislation.

Below is a breakdown of the changes that can impact you, the employer.

Right to Disconnect

From 26 August 2024 employees will now have the right to refuse contact and any attempted contact from you, their employer, or third parties, outside of their normal working hours for employers with 15+ staff.  This change will come into effect for small businesses from 26 August 2025.

The Right to Disconnect (R2D) will affect all employees of Modern Awards, including the Funeral Industry Award 2020, Cemetery Industry Award 2020, and Clerks – Private Sector Award 2020.

Types of contact can include but are not limited to, phone calls, text messages, and emails.

An employee’s R2D must be reasonable.  Determining whether the R2D is reasonable or not, the following will need to be taken into account:

• The reason for the contact
• Whether the employee is compensated or paid extra for being available/working the additional hours
• Nature of the employee’s role
• Employee’s personal circumstances, family/caring responsibilities

Staff who are on stand-by or on-call will not have the right to disconnect as it is an expectation and part of their role to be available during the period that they are being paid to be on stand-by or on-call.

Criminalisation of Underpayment of Wages

‘Intentional’ underpayment of wages will now become a criminal offence from 1 January 2025.  It will be an offence if an employer intentionally engages in conduct that denies an employee a required amount that was due to be paid to them, including superannuation payments.

The penalty for any underpayment for a company will be $7.825 million dollars, plus the greater of 3 times the amount of the underpayment if the court can determine that the underpayment has occurred.  Where the court is unable to determine that the underpayment has occurred, the penalty will be $7.825 million dollars.

Individuals can face a maximum of 10 years in prison, $1.565 million dollars, plus the greater of 3 times of the amount of the underpayment if the court can determine that the underpayment has occurred.  Where the court is unable to determine that the underpayment has occurred, the penalty will be $1.565 million dollars.

A Voluntary Small Business Wage Compliance Code (Voluntary Code) is currently being established and it will mean that small businesses won’t be criminally prosecuted if they underpay their employees.

This code is still being developed so there is no further information on this at this point in time.

Casual Employment Changes

From 26 August 2024, eligible employees will be able to provide written notice to their employer to change their employment type to permanent full-time or part-time when they have completed at least 6 months of employment (12 months if they are working for a small business employer).

Employees who are currently disputing their casual conversion, or if their employer has previously refused their notification in the last 6 months and/or there is a resolution to a dispute about casual conversation, will not be eligible to notify their employer of their intention to change their employment type.

Employers must consult with the employee prior to responding to an employee’s notice to change their employment to discuss details of the change and whether the employer accepts the notification.

Unions and Registered Organisations Changes

From 1 July 2024, unions can apply for an exemption certificate from the Fair Work Commission, waiving the necessary 24 hours’ notice required for entry to workplaces.  The exemption certificate will be issued in cases where the Commission is satisfied that an underpayment has been made for a union member or in cases where the Commission believes that providing notice will prevent an effective investigation into that contravention.

In relation to Workplace Delegate changes, delegates will be entitled to represent members and potential members working for their employer.  They will also be entitled to have reasonable communication with members and potential members of their employer, as well as having access to its facilities representing those industrial interests.

Delegates working for a small business will also be entitled to paid time for workplace delegate training.

To find out more about these changes and how they may impact your business, please contact our HR team on 1300 4 ADVICE to discuss with one of our HR specialists.

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