Tanya Haywood, Author at Breaking New Ground (BNG)

Amendments to the Fair Work Act 2009 have recently come into effect, resulting in some important changes for employers to consider. While organisations may already be complying with the changes with their current processes, or may be unaffected, it’s still important to keep up to date on workplace reforms to ensure compliance.

The right to disconnect

Perhaps the most well-publicised of these changes is the right to disconnect for workers, which came into effect on the 26th of August for larger businesses, and will be in effect from 26 August 2025 for small organisations with fewer than 15 staff members.

The right to disconnect protects the personal and private time of workers, setting more defined boundaries around when a person is at work and when they can be reasonably contacted for work-related tasks or questions. It means that a person is legally protected if they ignore contact outside their regular working hours, and can’t be punished for doing so, unless doing so is unreasonable.

While the definition of ‘unreasonable’ is not fully clarified for the purpose of flexibility and to recognise the many different circumstances of different workplace types, there are some general guidelines that can help organisations determine whether contact would be reasonable:

Personal circumstances: Firstly, knowledge of the employee’s personal circumstances is important. For example, if a staff member regularly finishes work earlier than the rest of the office in order to pick up a child from school, it would be unreasonable to expect them to answer a text message or email while driving. It may also be reasonable for a worker to ignore work-related enquiries while they are on a period of leave, depending on the nature of the query.

Urgency: Secondly, consider whether the contact is of an urgent nature. Can the enquiry wait until the staff member commences their next period of work, or is the contact regarding an immediate need? For example, ignoring a request to send through a document outside working hours could be reasonable, as it could be sent through at the commencement of work the next morning. However, not responding to a request to cover a shift for a sick co-worker when on call would be unreasonable in the circumstances.
Employee’s role: Is the person receiving contact the only person who is able to address the question, or could other team members answer it or help out? The particulars of the role and responsibilities of each worker may contribute to an assessment of whether or not it is reasonable to ignore contact outside of working hours, including whether the person is compensated for the potential of out-of-hours contact and/or work, or whether there is an understanding or agreement that they will be available for contact outside their regular working hours.
Form of contact: This consideration involves looking at how any contact or attempted contact is made with the employee. It includes factoring in the potential disruption of contact, which could include contact at unreasonable hours (e.g. while a person working given hours would be expected to be asleep). The method of communication is also considered here; for example, if out of hours communication is sent via a work email, whether it is a reasonable expectation for a person to be monitoring that email outside their working hours.

Factoring in these guidelines and how they intersect and interact for a given scenario can assist employers and employees in determining whether they have the right to disconnect.

It’s important to note that the new laws do not prohibit employers from contacting employees outside of their regular working hours, but they’re designed to allow employees greater flexibility and choice regarding what they do in their non-working hours. It’s a good opportunity to discuss expectations with staff about the scope of their role and expected hours of work, including potential compensation for availability outside their regular hours, and understanding each person’s circumstances and routine to determine expectations for a response time should contact be necessary. Open discussions with staff about when their employer might reach out and the conditions for doing so can help establish an understanding for both employer and employee regarding what is and is not reasonable contact.

Changed definitions for ‘employees’, ‘employers’ and ‘casuals’

Some other changes that may be relevant for your organisation relate to the definitions of ‘employee’, ‘employer’ and ‘casual workers’, focusing more heavily on how a person works in practice rather than the terms of their contract.

Defining the employer and employee relationship will now be determined on “the real substance, practical reality and true nature of the relationship” test under Section 15AA of the Fair Work Act 2009. This may have potential consequences for several types of workers and employers, including long-term contractors, or where a worker is performing their role at a different physical location than indicated in their employment contract. An example could be where an aged care worker was hired to work at one aged care facility, but has been regularly working for an extended period of time at a different facility and this has not been updated in their contract.

There is also a new definition of ‘casual work’, which considers whether there is “a firm advance commitment to continuing and indefinite work”. Factors involved in this consideration include:

The flexibility of the employer to offer work, and the flexibility of the employee to accept or reject work when it’s offered;

The likelihood of work being available on a future, continual basis;

Whether the work performed by casual employees differs or is the same as permanent employees; and

The pattern and regularity of an employee’s work (for example, if they regularly work the same hours and days of the week, or if there is variation).

Other changes

There are some additional reforms now in place regarding contractors, including:

The type of organisation who uses the ‘whole of relationship’ and ‘start of relationship’ tests to determine whether a person is a contractor or employee;
Expansion of the Fair Work Commission’s powers to investigate unfair terms in contractors’ service contracts; and
A new classification of ‘regulated workers’ for certain types of roles including those in the gig economy or in road transport.

Up next from BNG

In light of these changes, we’ve got some new resources and updates to existing resources on the way, so make sure you watch out for our updates to ensure you don’t miss them! In the meantime, check out the ‘Human Resources’ topic in the Reading Room to see our current suite of workplace resources.

Curious about workplace compliance?

The Aged Care Quality and Safety Commission’s recently published Sector Performance Report for the March 2024 quarter provides some key insights into a number of areas of focus for the sector, where targeted improvement will result in improved experiences of older people receiving aged care.

Overall, while 84% of residential aged care providers were found to be fully compliant with the current Aged Care Quality Standards, only 64% of home care providers were compliant with all eight of the Standards. The two lowest levels of compliance were for Standard 2 – Assessment and Planning and Standard 8 – Organisational Governance, and the Commission also signposted an increased focus on the food and nutrition component of Standard 3 – Personal Care and Clinical Care.

Whether your organisation is compliant or not, it’s helpful to stay up to date on areas of focus, and regularly review your processes to ensure that older people are receiving the best possible care from the services you provide.

Preparing to deliver care – Standard 2

Assessment and planning requirements make up a large proportion of non-compliance with the Quality Standards, across both home care and residential aged care services.

Compliance with Standard 2 is a particular issue of concern in home care. Over one-third of home care providers were found to have compliance issues relating to Standard 2, particularly in the area of assessment and planning. Assessment and planning processes are especially important for home care providers, as the provider and staff have less control over the service environment, and may only provide services to, or even have contact with, each older person at limited times. Working with each older person and their family to put in place a care plan that works for them within their home environment is essential forhigh-quality home care.

Other issues of concern to the Commission across both residential and home care providers relate to risk management, especially failures to consider risks to safety and wellbeing when planning services, and failures to reassess and review risks when circumstances change or an incident occurs.

For those interested in risk management, we’ll be publishing a more in-depth look at how risk management can support your organisation’s processes soon.

Governance processes supporting compliance – Standard 8

Three of the ten lowest levels of compliance with the Quality Standards fall under Standard 8, which is concerned with organisational governance requirements. Compliance with Standard 8 is a continuing major focus area for the Commission, as organisation-wide governance systems, risk management systems, and clinical governance frameworks underpin the delivery of quality and safe care to older people.

Governance requirements do not exist in isolation. Careful consideration of governance requirements feeds into other important areas such as continuous quality improvement, demonstrating how reviewing and improving compliance in one area can lead to higher levels of compliance in many others. For example, low compliance with the safe and effective clinical care requirement could be linked back to an ineffective clinical governance framework that does not establish effective procedures for the delivery, review and improvement of clinical care.

The Commission’s provider governance reforms from December 2023 are designed to improve governance in aged care leading to greater levels of compliance with the Standard.

Food and nutrition in focus – Standard 3

The Commission’s Report also called out food and nutrition as a key area of continuing focus, in particular highlighting that high quality food, nutrition and dining can meaningfully improve older people’s quality of life.

Many of the complaints made to the Commission relate to the service of food and nutrition. In particular, residents of aged care facilities commonly raise concerns about the quality and variety of the food they receive, query whether their food meets their nutrition and hydration needs, or question the availability of food to suit specific dietary needs, including for medical reasons and religious or cultural requirements.

The impact of food and nutrition is so key to high quality care in aged care that it will be addressed with its own Standard in the forthcoming Strengthened Aged Care Quality Standards. We’ve recently updated our food and nutrition resources to reflect changed requirements in the the proposed Strengthened Aged Care Quality Standards, as well as best practice.

Improvements in other areas with low compliance can in turn work to aid food and nutrition services. For example, improving planning systems that partner with older people to fulfil Standard 2(3)(c) could include co-design or feedback mechanisms to help older people have greater input into menu and mealtime planning.

Monitor your compliance with SPP!

It’s important for providers to regularly review their compliance with all eight of the Aged Care Quality Standards. Even if your organisation was compliant at its last audit, regular review of processes can ensure that day to day operations remain consistent with Quality Standards requirements. It’s also a very important part of the continuous improvement process.

We have a full package of modules in SPP to help providers with their Quality Standards compliance, as well as policy and process reviews. If you have a detailed grasp of all requirements, you might choose to use our Self-Assessment Tool module to prepare for audit. Or you might choose our more detailed Educative module to take your team through each itemised requirement of the Quality Standards. That module presents a series of questions for each requirement, drawn from the Commission’s examples of actions and evidence. We also have a range of Best Practice modules that focus on other key areas including Clinical Governance, Governance Reforms and Spiritual Care. All of our modules have integrated links to recommended SPP resources to help you put in place the right policies and procedures. And all of them allow you to generate gap analysis reports and improvement plans.

You can also search our Reading Room for other resources to help improve their processes, either by searching by topic or by standard. For example, searching for ‘planning’ brings up 44 resources that can assist with planning in our resource library, while searching for ‘ACQS2’ brings up all 34 resources that we’ve linked to Standard 2 of the Aged Care Quality Standards.

Have you reviewed your Quality Standards compliance recently?

Explore how SPP can work for your organisation’s ACQS compliance with a free trial.

Author: Tanya Haywood

What you need to know about changes to the Fair Work Act