August 2024 – Fair Work Act Changes: What Employers Need to Know

Significant changes to the Fair Work Act will impact Australian workplaces this month. These updates bring new obligations and rights for both employers and employees. It’s essential to understand these changes to ensure compliance and maintain a positive working environment. At Harrisons, we’re here to provide clarity and support as you navigate these updates. 

1 JULY 2024: KEY CHANGES 

Exemption Certificates for Suspected Underpayments 

• What’s Changing: Registered organisations, typically unions, can apply for an exemption certificate from the Fair Work Commission, which allows them to waive the usual 24-hour notice requirement for entering a workplace to investigate suspected underpayments. This measure applies where giving advance notice could interfere with the investigation. 

• Employer Tips:
  • Ensure your payroll and record-keeping practices are transparent and up to date.
  • Regular audits can help you identify and correct any potential underpayments before they escalate. 

Workplace Health and Safety 

• What’s Changing: New offences for the industrial manslaughter of workers in South Australia, and for Commonwealth public workers commenced. This means that within Australia, all States and Territories except for New South Wales and Tasmania will have introduced criminal offences for industrial manslaughter and increased penalties for WHS offences. 

• Employer Tips:
  • Review your workplace health and safety protocols immediately.
  • Train managers and employees on WHS obligations to prevent accidents and ensure compliance with the new laws. 

26 AUGUST 2024: KEY CHANGES 

Changes to Casual Employment 

• What’s Changing: The definition of a ‘casual employee’ under the Fair Work Act is being revised. An employee is considered casual only if there is no firm advance commitment to ongoing and indefinite work. The substance of the employment relationship will be scrutinised, including entitlement to casual loading or a specific casual pay rate. 

• New Casual Conversion Pathway: Eligible casual employees have a new pathway to convert to permanent employment if they choose, replacing the previous rules. 

• New Protections Against Misrepresentation and Unfair Dismissal: The changes introduce rules against dismissing or threatening to dismiss employees to rehire them as casuals. As well as making false representations about casual employment. 

• Employer Tips:

• • Review employment contract templates to ensure they meet the new casual definition requirements, and ensure that all employment terms are clearly documented. 

• • Review the status of your casual employees and ensure that their classification aligns with the new definition.  

• • Communicate with your employees about their rights to convert to permanent positions. 

• • Be ready to respond to employee conversions from casual to permanent positions, especially if you are seeking to contest the conversion on reasonable grounds. 

Right to Disconnect 

• What’s Changing: (from 26 August 2025 for small businesses), eligible employees will have the ‘right to disconnect’ outside of work hours. They can refuse to monitor, read, or respond to contact from their employer or third parties outside their working hours, unless it would be unreasonable to do so. 

• Consider these factors when determining whether an employee’s refusal is unreasonable. 

• • the reason for the contact 

• • whether the employee is compensated or paid extra for: 

• • • being available to be contacted to perform work within a specific period, or 

• • • working additional hours outside their ordinary hours of work 

• • the nature of the employee’s role and level of responsibility 

• • the employee’s personal circumstances, including family or caring responsibilities. 

• Employer Tips:  

• • Talk with your employees about what this means for your organisation and people. 

• • Establish clear guidelines for out-of-hours communication and respect your employees’ right to disconnect.  

• • Consider implementing a company-wide policy/guideline to manage expectations around availability and after-hours work. 

• • Consider addition of clauses in employment contracts relevant to the level of position. 

Definition of Employment 

• What’s Changing: New definitions for ‘employee’ and ‘employer’ added to the Fair Work Act, with considerations given to the real substance, practical reality, and true nature of the employment relationship. This impacts the classification of workers as either employees or independent contractors. 

• Employer Tip: Reassess your current contractor arrangements to ensure they reflect the true nature of the relationship. Misclassification leads to significant legal and financial consequences, including back payment of superannuation and other entitlements. It’s essential to get this right. 

Minimum Standards for Gig Economy Workers and the Road Transport Industry 

• What’s Changing: New protections apply to certain ‘employee-like workers’ in the gig economy and contractors in the road transport industry. The Fair Work Commission are empowered to set minimum standards for these workers, and registered organisations are able to make collective agreements with digital labour platforms and road transport businesses. 

• Employer Tip: If your business engages gig economy workers or road transport contractors, review these relationships considering the new standards. The contracts must reflect fair terms. Be prepared for potential collective agreements. 

Additional Workplace Delegates’ Rights 

• What’s Changing: Rights and protections for workplace delegates under the Fair Work Act expand to include regulated workers, such as gig economy workers and road transport contractors. 

• Changes to workplace delegates’ rights as part of the Closing Loopholes amendments to the Fair Work Act: 

• • 15 December 2023 – new rights and protections introduced for workplace delegates 

• • 1 July 2024 – awards, new enterprise agreements and new workplace determinations include a workplace delegates’ rights term 

• • 26 August 2024 – workplace delegates’ rights extended to regulated workers 

• Employer Tip: Foster a cooperative relationship with workplace delegates and ensure they are supported in their roles, which will help prevent disputes and promote a positive workplace culture. 

How Harrisons Can Help 

At Harrisons, we understand these changes can be complex and challenging so our team of HR experts is here to support your business in navigating these updates effectively. Here’s how we can assist: 

• Compliance Audits: Harrisons conduct comprehensive audits of your current employment practices so that you have alignment with the new Fair Work Act requirements, including award classification, pay rates, employment contracts and policies. 

• Policy Development and Training: Harrisons tailor policies and deliver training sessions for your team so that everyone is informed and prepared for the changes. 

• Casual Employment Reviews: Harrisons’ experts review your casual workforce, providing guidance on conversion pathways and consequently ensuring your contracts and practices are compliant with the new definitions. 

• Workplace Health and Safety Consultations: Harrisons work with you to review and enhance your WHS protocols and as a result help you avoid severe penalties of non-compliance. 

Harrisons helps you stay compliant, protect your employees, and thrive in this new regulatory environment. Contact us today to learn more about how we can support you through these transitions.