Closing Loopholes Part 2 – how does this impact WA employees?

Closing Loopholes (No 2) is the second wave of amendments to the Fair Work Act, bringing significant changes to national system employees, and certain contractors. If you’re unsure whether you are a national system employee – please see our Q&A here. It is important to note that if you are a state system employee, then generally speaking – these new changes will not apply.  

What’s my right to disconnect?  

Have you ever received a task from your boss outside of work hours? Did you respond? The right to disconnect is essentially giving employees a right to not respond after work hours. An exception is where it would be unreasonable to refuse to respond. Whether it was unreasonable to refuse can be based off several different factors. To name a few – you may want to consider the reason for the contact, and whether you are being fairly compensated for being on call or working additional hours.  Your right to disconnect is a protected right – meaning that your employer generally cannot punish you or treat you differently if you choose to exercise your right.  

What’s the new definition of “casual employee”? 

Casual employees will have a new definition under the Fair Work Act – so that instead of focusing on what classification was agreed to at the start of the contract, the new definition requires people to consider whether they are permanent or casual based on what the day-to-day employment relationship looks like in reality. A casual employee is still an employee with “no firm advance commitment” to work – generally meaning they can accept or reject shifts, the employer can choose to offer or not offer shifts, and there is no certainty of ongoing work.  It is also now illegal if an employer tries to:  

• convince a permanent employee to enter into a casual contract to do the same work (or mostly the same work); 

• threatens to dismiss the permanent employee, or actually dismisses an employee to make them a casual for the same work (or mostly the same work).   

What are the new rules about going from casual to permanent?  

Casual conversion is a right to go from casual to permanent. There are specific rules to trigger the right to casual conversion. And under the new casual conversion laws, casuals will generally remain as casual employees until they ask to be made permanent.  Casuals don’t necessarily need to use their right to casual conversion, they can come to an agreement with their employer to change their contract to permanent at anytime. 

Casual conversion for employees who start on or after 26 August 2024 

After 6 months (or 12 months if your employer has less than 15 employees) casuals can notify their employer that they want to become permanent if they believe they no longer meet the definition of casual employment.  

Casual employees who started employment before the 26 August 2024. 

For 6 months (or 12 months if your employer has less than 15 employees) after 26 August 2024, existing casuals are still covered by old casual conversion laws. For more information on casuals and casual conversion, please see the Fair Work Ombudsman’s website here. 

Am I impacted by the new test for employees and contractors?   

Rather than looking at just the classification and rights written into the contract, whether someone is an employee or contractor will depend on what the day-to-day working relationship is like in reality. From 26 August 2024, employees and contractors will be covered by this new test – potentially turning some contractors into employees. Employees generally have additional protections and entitlements – compared to contractors, creating a situation where some workers may be able to claim for employee entitlements from when they become an employee. Note, contractors earning $175,000 or above may be able to opt out of the new test – so that they remain as contractors.  

What are the “Same Job Same Pay” orders for labour hire employees?   

Labour hire employees can now apply for an order from the Fair Work Commission to be paid at least the same rate of pay as employees of the host business (who are doing the same work). You may see the media referring to this as the “Same Job Same Pay” orders, but the legal name for this type of order is a regulated labour hire arrangement order. For more information about labour hire employees – see our Q&A here.  

This blog post only covers the most relevant changes to WA employees. For the changes around certain contractors, please contact the Fair Work Ombudsman.  Whilst titled “Closing Loopholes” we can appreciate that ironically, the new changes to the law can come with plenty of new questions. If you have a question about how the law applies to your specific situation, you can click here to request free legal assistance.