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.
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