Definition of casual employment

The new definition of casual employment considers:

• any entitlement to casual loading or a specific casual rate under a FW Act instrument or employment agreement; and
• whether there is an absence of a firm advance commitment to continuing and indefinite work, assessed on the basis of the "real substance, practical reality and true nature of the employment relationship", as well as other factors.

Section 15A also provides that an academic or teaching employee in a university cannot be a casual employee if their contract of employment contains an end date.

Casual conversion

The casual conversion process has been changed:

• a casual employee may give an employer notice that they believe they are no longer a casual employee after 12 months of employment;
• the employer must consult with the employee about the notice;
• the employer must respond within 21 days, either to:
  a) confirm they accept the notice and provide details of the employee's ongoing employment; or
  b) confirm they do not accept the notice and provide reasons.

An employer can elect not to accept the notice if:

• it disagrees that the employee is no longer a casual employee;
• there are fair and reasonable operational grounds for not accepting the notice; or
• accepting the notice would breach a recruitment or selection process required by law.

Enterprise agreement making

Employees must be notified of the changes in modern awards, duration of the access period before a vote, and there are specific explanation requirements since the last relevant enterprise agreement was made.

There are also additional triggers for issuing a Notice of Employee Representational Rights when bargaining commences.

The better off overall test (BOOT) has undergone significant changes.

The Fair Work Commission now has the power to arbitrate intractable bargaining disputes.

Workplace delegates' rights

Workplace delegates now have the right to represent the industrial interests of current and prospective union members, and the right to 'reasonable':

• communication with those members in relation to their industrial interests;
• access to the workplace and the workplace's facilities for the purpose of representing those interests; and
• access, if not employed by a small business, to paid time during normal work hours to undertake training relevant to the role of a workplace delegate.

A 'delegates rights term' has been inserted into modern awards, enterprise agreements and workplace determinations from 1 July 2024.

Compliance focus

A number of compliance measures under the FW Act have been strengthened. Most notably, the threshold for a 'serious contravention' of the FW Act has been lowered to capture recklessness. A person will be taken to be reckless if they are:

• aware of a substantial risk that a contravention would occur; and
• it is unjustifiable to take the risk having regard to the circumstances known to that person.

Right to disconnect

An employee now has the right to refuse to monitor, read or respond to contact / attempted contact outside the employee's working hours from their employer or a third party, if the contact relates to their work, unless the refusal is unreasonable.

Redundancy processes

In Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45, the Full Court of the Federal Court of Australia held that it is reasonable for employers, when considering making redundancies, to consider redeployment to roles performed by independent contractors.

The High Court has granted Helensburgh Coal special leave to appeal – watch this space.

To find out more about workplace reforms in the higher education sector, please reach out to the relevant MinterEllison contacts below.