Closing Loopholes Changes

Posted on 26 August 2024 | by Allan Hall

There are new workplace laws that are coming into effect from 26 August 2024, as part of the Closing Loopholes changes.

These changes are important to review if you engage workers under employee or independent contractor arrangements.

We have listed the upcoming changes below and have linked additional articles providing further information.

New definitions of employment – The Fair Work Act will define ’employee’ and ’employer’ based on the true nature and practical reality of the working relationship. This may result in some independent contractor working arrangements being characterised differently. Learn more »
Changes to casual employment – The Fair Work Act will redefine ‘casual employee,’ introduce a new pathway for casuals to become permanent, and increase frequency to provide the Casual Employment Information Statement. Learn more »
Right to disconnect – Eligible employees will have the right to disconnect outside work hours, including refusing to respond to employer or third-party contact, with rules to determine whether such refusal is unreasonable. Note, these changes will not apply to small business employers until 26 August 2025. Learn more »
New minimum standards for gig economy workers and the road transport industry – New minimum standards and protections for gig economy and road transport industry workers, called ‘regulated workers,’ will commence. The Fair Work Commission will be able to set minimum standards orders or guidelines regarding terms such as payments, deductions and insurance. The changes also expand access to collective agreements for regulated workers and provide the Commission with power to deal with dispute resolution for unfair terminations or deactivations.
Additional workplace delegates’ rights – The Fair Work Act will expand rights and protections for workplace delegates. Workplace delegates will include regulated workers, such as employee-like workers and regulated road transport contractors.

There will be further changes to laws affecting Australian workplaces as a result of the Closing Loopholes Acts, and we will post articles to keep you up to date as these changes approach.

Need assistance?

At Allan Hall HR, we have a team of experienced HR consultants. Please call us on 1300 916 764 or contact us here to discuss any questions you may have with us in regard to the upcoming Fair Work Act changes and what your business will need to do to prepare for these. To learn more about our services, please click here.

CONTACT ALLAN HALL HUMAN RESOURCE

contractors, employer, employment, human resources, legislation, transport

Independent Contractor Changes

Posted on 30 July 2024 | by Allan Hall

Effective 26 August 2024, changes to the definition of employment and contractor rights may result in some working relationships being characterised differently and the removal of unfair contract terms.

Definition of Employment and Worker Engagement

As a result of the Closing Loopholes legislation, on 26 August 2024 there will be a new definition of employee and employer under the Fair Work Act.

From 26 August 2024, determining if a worker is an employee or independent contractor will be based on the actual nature of the relationship between the parties. Accordingly, a multi-factor test will be used to determine the true working relationship. Factors in the test will include (and can vary from case to case):

the extent of control of, or the right to control, the worker
whether the worker is provided with tools and equipment
whether uniforms were provided and/or required by the principal
whether the worker is permitted to delegate or subcontract work
the remuneration structure – specifically, whether the worker receives payment of a periodic wage or salary or compensation by reference to the completion of a task or project
whether the worker is entitled to paid annual leave or sick leave; and
the express terms of the contract between the parties.

Unfair Terms in Contracts

Contractors can now approach the Fair Work Commission if they believe their contract includes unfair terms. The Fair Work Commission can:

Determine if a contract term is unfair, considering various factors
Set aside, amend, or vary the contract if it contains unfair terms.

Contractors earning above a yet to be determined ‘high-income threshold’ will not be able to seek an unfair contract remedy with the Commission however they can seek a court review.

Sham Contracting

Sham contracting, where an employer falsely represents an employee relationship as an independent contractor arrangement, is prohibited under the Fair Work Act. Employers must review and correct any existing arrangements to ensure compliance.

What should employers do?

Review Worker Classifications: Employers should review current working relationships to ensure they align with the updated criteria. The multi-factor test, as described above, should be used to accurately classify workers as employees or contractors.
Assess and Review Contracts: Ensure current contracts accurately reflect the true nature of the working relationship. Make adjustments if there’s a mismatch between contract terms and practical reality.
Avoid Sham Contracting: Ensure all employment arrangements are correctly classified and transparent. Misrepresenting an employee as an independent contractor is prohibited, so reviewing existing arrangements and updating them if they have been misrepresented, is crucial to comply with the new legislation.

Need assistance?

At Allan Hall HR, we have a team of experienced HR consultants. Please call us on 1300 916 764 or contact us here to discuss any questions you may have in regard to independent contractor changes, including reviewing contracts and the arrangements in place for independent contractors. To learn more about our services, please click here.

CONTACT ALLAN HALL HUMAN RESOURCE

contractors, employer, employment, human resources, legislation

Steps to Prepare for New Fixed Term Contract Rules

Posted on 22 January 2024 | by Allan Hall

From 6 December 2023 there have been substantial changes in the usage of fixed term contracts.

What are the New Rules?

There are new rules for fixed term contracts that are designed to regulate employment duration and extensions. These changes will bring about a significant shift in how employers engage workers on a fixed term contractual basis.

The main changes encompass three key areas:

Time Limitations: Fixed term contracts cannot exceed a duration of 2 years.
Renewal Limitations: Contracts cannot have an option to extend or renew to lengthen the employment period beyond the stipulated 2-year period. Additionally, extensions or renewals cannot occur more than once.
Consecutive Contract Limitations: Employees cannot be offered a new fixed term contract if specific conditions apply. These include if:
- their previous contract was fixed term, and
- their previous and new contracts are mainly for the same work; and
- there is continuity in the employment relationship between contracts.

Additional considerations include whether:

the employee’s previous contract contained an option to extend and was used;
the total period of employment is greater than 2 years;
the new contract has a clause to extend; and
the previous contract was fixed term, similar work and there was substantial continuity of the employment relationship.

These new rules do not cover casual employees and contain exceptions for certain types of fixed term contracts.

Contracts made before 6 December 2023 won’t fall under these new limitations, but the rules will apply to fixed term contracts entered into on or after this date.

Employers are mandated to provide a Fixed Term Contract Information Statement (FTCIS) to new employees engaged under these contracts after 6 December 2023. This statement outlines the regulations and entitlements related to fixed term employment.

Download the Fixed Term Contract Information Statement (FTCIS) here »

Steps to Ensure Compliance

In order to ensure compliance with the new changes, we recommend that businesses take the following steps:

Familiarise yourself with the new rules as per the Fixed Term Contract Information Statement (FTCIS) above
Conduct an audit of any current employees on Fixed Term Contracts within the business to assess if contracts will be compliant moving forward
Identify whether the business or individual employee may be exempt from the new changes
Revise Fixed Term Contract templates terms and conditions to ensure you are compliant.

These changes aim to protect employees and ensure fair employment practices, while simultaneously providing clarity and guidelines for employers navigating the realm of fixed term contracts.

Need Assistance?

At Allan Hall HR, we have a team of experienced consultants to assist with all your employment contractual arrangements and ensure your business is compliant with current legislation. If you are uncertain about how the new legislation applies to your business, please feel free to call us on 1300 675 393 or contact us here. To learn more about our HR services, please click here.