02 Aug HR LAW NEWSLETTER – JULY 2024

Welcome to the July 2024 HR Law Newsletter. 

This month, we provide updates relating to the further implementation of the the Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024 (“Closing Loopholes No.2 Act”) including employees’ right to disconnect and the provisions regarding casual employees.  We discuss the Fair Work Commission’s first “same job, same pay” ruling and examine a recent case in which a State-owned public transport provider was ordered to backpay a Hobart bus driver for paid parental leave.

RIGHT TO DISCONNECT

Part 8 of the Closing Loopholes No.2 Act inserts a new Division 6—Employee right to disconnect in the Fair Work Act 2009 (Cth) (“FW Act”), which:

• establishes a new employee right to disconnect, which is a workplace right;
• provides for the Commission to deal with a dispute between an employee and their employer about the right to disconnect, including by issuing a stop order and/or otherwise dealing with the dispute (in addition to the Commission’s functions under the general protections provisions); and
• requires the Commission to make written guidelines in relation to the operation of Division 6.

The right to disconnect provisions will commence on 26 August 2024 (and 26 August 2025 for small businesses).  A draft right to disconnect term provision can be found in Appendix A of Justice Hatcher’s Statement of 11 July 2024, click here to read the draft provision.

With these changes fast approaching, the Commission has published its Implementation Report regarding the new right and the Commission’s functions.

The Implementation Report is divided into two sections.  The first section outlines the new right to disconnect as well as provisions establishing the Commission’s functions in relation to right to disconnect disputes.  The second section outlines the actions the Commission proposes to take in implementing these functions.  The following provides an overview of topics covered under each section:

Section 1 – Overview of the Commission’s Right to Disconnect Functions

• The right to disconnect
• Disputes about the right to disconnect
• Stop orders
• Dealing with disputes in other ways
• General Protections Provisions

Section 2 – Implementation of the Right to Disconnect Functions

• Right to disconnect case management
• Forms and correspondence
• Performance measures
• Resources

To read the Implementation Report, click here.

CASUAL EMPLOYEES

On 26 February 2024, the Closing Loopholes No.2 Act received royal assent.  Some key changes in the Closing Loopholes No.2 Act in relation to casual employees include changes to the FW Act as follows:

• New definition of casual employee: While retaining the concept of no ‘firm advance commitment to continuing indefinite work’, the new definition introduces ‘indicia’ and a ‘general rule’;
• Casual to permanent conversion: There will be a new casual conversion pathway, allowing casual employees to convert to full-time or part-time employment after six (6) months (non-small business) or 12 months (small business); and
• Dispute resolution: The current process will be replaced with a new procedure, which includes compulsory arbitration.

With the upcoming changes soon to take effect from 26 August 2024, it is important that you are prepared for the changes and the impact on your business.

To read the Fair Work Commission’s Statement, click here.

LEGISLATIVE CHANGES – QUEENSLAND RESPECT AT WORK BILL

The Queensland Government has recently introduced the Respect at Work and Other Matters Amendment Bill 2024 (“the Bill”). This Bill would enhance and bolster protections for Queensland workers against harassment and sex-based discrimination.

If the Bill passes, further protected attributes will be included in the Anti-Discrimination Act 1991 (Qld) as follows:

• potential pregnancy;
• family, carer or kinship responsibilities;
• subjection to domestic or family violence;
• homelessness;
• physical appearance;
• expunged conviction;
• irrelevant criminal record; and
• irrelevant medical record.

To access the Bill, click here.

FAIR WORK COMMISSION’S FIRST “SAME JOB, SAME PAY” RULING

On 1 July 2024, the Fair Work Commission made its first “same job, same pay” ruling.  As a result, approximately 300 labour hire workers employed by Workpac at Batchfire Callide coal mine are expected to receive a pay increase each of up to $20,000.00 later this year.

The Mining and Energy Union lodged the application under section 306E of the FW Act for a regulated labour hire agreement order, which was not opposed by Batchfire (the host mining company) or Workpac (the mining labour hire business).

The Full Bench considered that the Batchfire and Workpac employees were essentially indistinguishable as they both:

• worked side-by-side on the same rosters;
• attended the same pre-start meetings;
• were allocated the same work and equipment;
• perform the same production work;
• wore the same Batchfire uniforms;
• were required to comply with Batchfire’s instructions; and
• underwent the same Batchfire conducted site inductions during onboarding.

Under section 306F(2) of the FW Act, where a regulated labour hire arrangement order is in force, an employer must pay its regulated employees no less than the ‘protected rate of pay’ for the employee in connection with the work performed by the employee for the regulated host.

The Full Bench has issued a draft order, providing the parties with an opportunity to provide comments before finalisation.

To read more about this decision, click here.

THIS MONTH’S CASE BRIEF

In the recent decision in the case of Australian Rail, Tram and Bus Industry Union v Metro Tasmania Pty Ltd [2024] FWC 1873, the Fair Work Commission ordered Metro Tasmania Pty Ltd, a State-owned public transport provider, to backpay a Hobart bus driver for paid parental leave after he stepped in as the primary carer for his newborn son.

Paid parental leave was provided for under Metro Tasmania’s enterprise agreement, namely the Metro Tasmania Bus Operators Enterprise Agreement 2020 (“the Agreement”).  Under the Agreement, employees were entitled to eight (8) weeks paid parental leave provided they met the eligibility requirements, including being the primary carer of the child.

Before the bus driver’s son was born, it was agreed between the driver and his wife that his wife would be the primary carer of the child.  However, the driver’s wife had an emergency caesarean section, and was subsequently unable to be the primary carer.  The driver provided Metro Tasmania with a doctor’s certificate confirming his wife’s inability to be the primary carer.

Despite Metro Tasmania’s arguments about insufficient notice and their belief that the driver could not be the primary carer simultaneously with his wife, Deputy President Val Gostencnik ruled that:

• the driver’s care responsibilities during the period in question were clear – he was the primary carer; and
• there was no requirement under the relevant clause to provide a specific period of notice to claim the entitlement.

As a result, Metro Tasmania was ordered to pay the driver paid parental leave pursuant to clause 34 of the Agreement for the period between 8 February 2024 to 4 April 2024 inclusive.

To read the case, click here.

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