What is happening in the world of HR for small businesses?
Next round of legislative changes – Closing Loopholes No.2
On 12 February 2024, the Federal Parliament passed the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023. The changes made are significant, and some will impact most employers in Australia.
Right to disconnect
Employees will have the right to refuse to monitor, read or respond to contact (or attempted contact) from an employer or third party outside their usual working hours unless the refusal is unreasonable.
There are several factors to consider when determining if the refusal is unreasonable or not, including,
- why and how contact was made,
- how disruptive the contact was,
- the nature and responsibility level of the employee’s role,
- whether the employee has any family or caring responsibilities and
- whether the employee receives compensation for remaining available to perform work or working outside their additional hours.
An employer cannot adversely act against employees for exercising their right to disconnect. This will become effective six months after royal assent.
What should employers do next?
Employers need to assess how this will affect their current workplace practices. For many, it will have little or no impact. For others, it may significantly change how they set team expectations.
Over the next few months, consider what changes must be made to ensure your organisation is compliant. Observe where there may be risk and consult with your team on what changes must be made.
At Strawberry Seed, we are working on a policy for our clients to manage risk and ensure that expectations and boundaries are clear for all. Watch this space!
Casual Employment
Casual employment is characterised by:
- An absence of a firm advance commitment to continuing and indefinite work and
- The employee is entitled to casual loading.
Employers will need to monitor the use of casual employees to ensure their work does not fall into a pattern of regular or consistent hours.
Several factors must be considered when assessing whether there is a “firm advance commitment,” including the true nature of the employer/employee relationship and the practical reality. The employment contract can be one of the considerations.
Casual conversion can now only be initiated by the employee. An employee can request a conversion from casual to permanent employment after six months (or twelve months for small businesses). This request can be refused on fair and reasonable operational grounds.
Employers will also have to provide casuals with a Casual Employment Information Statement more often – before or when they start, after six months (excluding small business employers) and again after 12 months.
This change will be effective six months after royal assent.
What should employers do next?
Casual employment has been an ever-changing landscape, and this Bill essentially restores the conditions to the expectations before the last changes.
Ask yourself if your causal are true casuals under the definition. Regularly review your casual positions to ensure they are still meeting the definition, and check in with the employees to ensure they are happy with the arrangements. Casual employment cannot be set and forget.
Definition of employment and ability to challenge unfair contract terms
A new definition of employee and employer will determine who’s who and what protections, rights, and entitlements are in place for each party. The new definitions will be determined by ‘ascertaining the real substance, practical reality and true nature of the relationship’ between the parties. The relationship will be considered by reviewing the terms of the contract and how the contract is performed in practice, amongst other factors.
This change is anticipated to result in numerous independent contractors being re-classified as employees based on how the relationship operates in practice. This could lead to claims of unpaid employee entitlements.
The change will be effective six months after royal assent (or earlier by proclamation).
What should employers do next?
Employers should review their contracting arrangements and check how their relationship with contractors is playing out. We highly recommend reviewing your current template agreements with a commercial lawyer to ensure no unfair terms, such as a contractor receiving less remuneration than an employee performing the same work.
Just like casuals, the risks with an independent contractor can increase over time as the relationship and nature of the work change or evolve. You must review all current arrangements and decide if they will still work for your business.
Right of entry for underpayments
A union will have the authority to request an exemption certificate from the Fair Work Commission (FWC) to waive the minimum 24-hour notice requirement for exercising the right of entry if they reasonably suspect a member of their organisation has been or is being underpaid wages or other monetary entitlements. The FWC must be satisfied that advance notice of entry into a workplace would hinder an effective investigation into suspected contraventions.
Under these latest reforms, penalties associated with underpayment will be significantly increased. Employers who knowingly underpay staff could face up to 10 years imprisonment and a maximum fine of $7.825 million (or three times the underpaid amount if it exceeds the cap).
The change to right of entry comes into effect 1 July 2024.
What should employers do next?
All employers should regularly check their payroll to ensure they meet the minimum legal obligations for pay. There is no excuse for underpaying employees. If you need help, our team can conduct a full audit to ensure you are not at risk of penalties.
We will keep you appraised of the details of these changes across 2024 as the employment landscape evolves. If you have concerns about how these changes may affect your business, contact the Strawberry Seed team at (03) 4216 5200.
Free OHS Essentials program in Victoria
Worksafe offers free workplace safety consultation services from independent occupational health and safety experts.
WorkSafe does not employ the program’s consultants; their recommendations are completely confidential. Businesses can benefit from an independent OHS consultant’s practical, tailored safety advice. The consultant will come to your workplace and make safety recommendations for your business.
This program is open to small and medium businesses (up to 60 workers) that hold a WorkCover insurance policy. Sole traders with contractors may also be eligible to apply but must hold a WorkCover insurance policy. Farmers do not need a WorkCover insurance policy to qualify for the OHS Essentials program.
For more information on this program, visit the WorkSafe website.
Upcoming Training and Development
Webinar – 101 of HR for Building and Trade
Our next free webinar will be held on the 13th of March, 2024, at 7.30 pm.
Our ‘101’ webinar series is designed to explore the details of managing employees in specific industries, allowing us to examine the details that matter.
Please join our Principal HR Advisor, Helen Dodd, as she explains what businesses in Building and Trade need to know regarding HR and Employment.
Bookings can be made here, and please feel free to pass this on to other business owners. Don’t worry if you can’t attend on the night. You will receive a recording to watch at your convenience.
Public Leadership Training Workshops for 2024
One of our popular HR services is developing and delivering customised in-house leadership training for our clients. However, we realise that not all small businesses are large enough to have a session independently.
Our public Leadership Training Workshop is designed to bring together people managers from the small business community to share their experiences and develop their knowledge and skills to be better leaders. This workshop aims to ensure leaders get the most out of their people, improve productivity and reduce organisational risk.
Leadership Training Workshops are scheduled throughout the year in Melbourne, Sydney, Brisbane, Adelaide and Perth. Discount codes are available for HR Package clients. For more information and details on how to book, click here.
Mental Health First Aid Training for 2024
Mental Health First Aid training teaches practical first aid skills to help a team member or co-worker experiencing mental health issues. We’ll teach you how to approach someone struggling, ask the right questions and assist them in accessing professional help. In 2023, we delivered 13 courses across the country, educating 128 people on Mental Health First Aid, including the whole team at Strawberry Seed.
Our Principal HR Advisor and Mental Health First Aid Instructor, Frances Orr, is an accredited MHFA trainer who has delivered in-house MHFA training for many clients since 2021.
We have several options for attending public and private in-house Mental Health First Aid training in 2024. For more information on private courses, contact mhfa@strawberryseed.com.au.
We have public Blended Online and Blended Face-to-Face workplace courses scheduled across the year. The details and dates for the upcoming sessions can be found here. Discount codes are available for HR Package clients.
