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Casual Employment Changes & Right to Disconnect
from Hotel SA Sep 2024
by Boylen
BY OWEN WEBB & SARAH LEGOE
Reforms from the Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024 resulted in amendments to the Fair Work Act 2009 (Cth) (Act) which commenced on 26 August 2024. These included changes to casual employment and the introduction of right to disconnect provisions. In this article we look at those two changes, their impact on the Hotel industry and recommendations for employers.
Casual Employment
On 26 August 2024, amendments to the Act commenced which will resulted in some changes to how casual employment are managed and regulated. These amendments include:
Changes to the definition of casual employee
Repeal of the casual conversion provisions
Introduction of the employee choice provisions
Changes to the Casual Employment Information Statement and frequency in which to provide to employees
Definition of Casual Employment
Whether an employee is a casual employee is currently determined by the offer of employment that is accepted by an employee at the time they commence employment. If an employee accepts an offer of employment which has no firm advance commitment to continuing and indefinite work, that person will be deemed to be a casual employee.
From 26 August 2024, the definition of a casual employee no longer solely looks at what occurred at the time of engagement. Rather, it looks at:
(a) whether the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and
(b) the employee is entitled to receive a casual loading under a Modern Award, Enterprise Agreement or Contract of Employment.1
The characterisation of the employment relationship in above, is to be assessed:
(a) on the basis of the real substance, practical reality and true nature of the employment relationship;
(b) on the basis that a firm advance commitment may be recorded in a contract of employment, the terms of that contract, a mutual understanding or expectation between the parties whether a term of a contract or not;
(c) having regard to the following:
whether the employer is able to offer, or not offer, work to an employee, and conversely whether the employee is able to reject work or not;
whether it is reasonably likely that there will be work available in the future at the business;
whether there are full time and part time employees undertaking the same kind of work in the business; and
whether there is a regular pattern of work for the employee, noting that a regular pattern of work does not itself indicate a firm advance commitment to continuing and indefinite work.2
Importantly, an employee who commences their employment as a casual employee as defined under s 15A of the Act will remain a casual employee until the occurrence of a specific event, which includes:
the employee’s employment status changing to full-time or part-time; or
the employee’s employment status is changed by order of the Fair Work Commission (FWC); or
the employee’s employment status is changes to full-time or part-time under a Modern Award or Enterprise Agreement; or
the employee accepts an alternative offer of employment (other than as a casual) by the employer and commences work on that basis3
Removal of Casual Conversion Provisions
Since 27 March 2021, employers have had an obligation to offer a casual employee full or part time employment after the employee has been employed for a period of 12 months and otherwise in accordance with section 66B of the Act.
From 26 August 2024, the casual conversion provisions contained in the National Employment Standards have been repealed meaning employers are no longer obligated to offer full or part time employment to casual employees, or a reason as to why such offer will not be made.
Employee Choice Provisions
The employee choice provisions replace the existing casual conversion provisions. The new provisions put the onus back on the employee to make a request to covert from casual to full or part time employment, rather than requiring the employer to make an offer of full or part time employment.
Under the new provisions, a casual employee may by written notice to the employer, request to convert from casual to permanent employment, subject to provisions outlined in section 66AAB of the Act.
An employer will then need to provide a written response to the request within 21 days of the request being made, either accepting or rejecting the request. If the employer rejects the request they can only do so on reasonable business grounds, as outlined under section 66AAC of the Act.
If a dispute in relation to the employee choice provisions cannot be resolved at the workplace level, then a party can refer the dispute to the FWC who can then deal with the dispute through mediation, conciliation, expressing an opinion or potentially arbitration4.
Casual Employment Information Statement
Employers have been required to provide new casual employees with not only a Fair Work Information Statement (FWIS) but also a Casual Employment Information Statement (CEIS) since 27 March 2021. The amendments do not remove this obligation but change the frequency with which the CEIS must be provided and both the FWIS and CEIS were updated on 26 August 2024.
The FWIS needs to be given to all employees (including casuals) at the commencement of their employment. The CEIS must be given to all casual employees:
Before, or as soon as practicable after, the commencement of their casual employment; and
As soon as practicable after the casual employee has been employed for a period of 6 months beginning the day the employment started; and
As soon as practicable after 12 months beginning the day the employment started; and
then every 12 month anniversary thereafter
For a small business employer (14 or less employees) the CEIS must be given to all casual employees:
Before, or as soon as practicable after, the commencement of their casual employment; and
As soon as practicable after 12 months beginning the day the employment started5
Recommendations
Contract of Employment on commencement – All casual employees should sign a contract of employment which sets out the fact that they are engaged on a casual basis, paid a loading, that there is no firm advance commitment to continuing and indefinite work and that the employee can accept or reject shifts.
Remind casual employees to check the roster as they are not guaranteed set hours or a set pattern of work
Remind casual employees that they have a right to reject shifts.
Set up a process for employees providing you with their availability for the upcoming weeks roster.
Try, so far as is practicable in line with availability, to vary rosters from week to week.
Do not put rosters out weeks or months in advance and advise casuals that they are unable to reject shifts.
Right to Disconnect
For all employers, other than small business employers, the right to disconnect provision commenced on 26 August 2024. For small business employers, the right to disconnect provisions do not commence until 26 August 2025.
Employees now have the right to:
“refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable.” (see section 333M(1) of the Act).
The right to disconnect will also extend to contact, or attempted contact, from a third party provided that the contact or attempted contact relates to work (see section 333M(2) of the Act).
What are the employee’s working hours
An employee’s working hours may be:
The employee’s rostered hours as varied from week to week; or
For those employees whose positions are not roster based positions, the hours of work stipulated in a contract of employment or the hours ordinarily worked by the person; or
The hours of work that may be contained in flexible working arrangements agreement; or
If the employee is working restricted hours as a result of an accepted workers compensation claim, the hours of work as set out in the return to work plan (if specific work hours are stipulated in the return to work plan).
When will the refusal to monitor, read or respond to contact be unreasonable
There are a number of factors that may be taken into account when determining whether the employee’s refusal to monitor, read or respond to contact may be unreasonable, but consideration must be given to:
the reason for the contact or attempted contact
how the contact or attempted contact is made and the level of disruption that is causes the employee
whether the employee is compensated for either working additional hours or remaining available to perform work.
the nature of the employee’s role and their level of responsibility
the employee’s personal circumstances
In addition to the above, it would not be unreasonable to contact an employee outside of work hours if the contact (or attempted contact) is required under a Commonwealth or State law.6
Disputes
A dispute may arise in respect of the operation of section 333M, or as to whether the attempted contact or refusal to respond is unreasonable. In the event of a dispute arising, the employer and the employee should first try and resolve any dispute relating to the operation of these provisions at the workplace level.7
The Fair Work Commission (FWC) has the power to deal with disputes that are not able to be resolved at the workplace.
General Protections Claim
The right to disconnect is considered a workplace right for the purposes of the general protections provisions contained in part 3-1 of the Act.8 As such, an employer must not take adverse action (that is dismiss, demote or threaten to do either of these things) against an employee because the employee exercises a workplace right which in this case is the right to disconnect.
Recommendations – Right to Disconnect
The AHA|SA strongly recommends that members seek advice before taking any action against an employee who has failed to monitor, read or respond to contact or attempted contact from the employer.
Where employees are being contacted by third parties outside of their regular working hours, and such contact relates to work matters, the employer may wish to consider speaking with the third party in the first instance and advising them to only contact the employee during work hours (if at all depending on the nature of the contact).
Members may wish to consider implementing a policy which sets out when the employer would expect contact to be reasonable, and what may occur where an employee fails to respond to such contact. The policy should also set out how disputes will be handled at first instance.
If Members have any questions in relation to the casual employment changes or right to disconnect provisions, they should contact the Workplace Relations Team at the AHA. The AHA has also produced fact sheets in relation to these areas and they can be accessed under the Workplace Relations Tab in the members only section of the AHA website.
Endnotes
1 Act s 15A(1).
2 Act s 15A(2).
3 Act s 15A(5)
4 Act s. 66M
5 Act s. 125B
6 Section 333M(5) of the Act.
7 Section 333N(2) of the Act.
8 Section 333M(4) of the Act.
