The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022

‘Closing Loopholes’ – Key Amendments – Edition 2

The Australian Government introduced the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 to close ‘loopholes’ and gaps in employment law.

In this second edition in of our series, we will review the amendments made to the Fair Work Act 2009 (Cth) (FW Act) through the Closing Loopholes No 2. Bill implemented in 2024 For readers who are just joining this series, we encourage you to read edition 1.

These amendments include the largely debated Right to Disconnect and the new definitions for causal employment (the employment itself, the worker and the employer).

The Right to Disconnect

The Right to Disconnect will allow an employee to refuse to monitor, read or respond to contact or attempted contact from their employer outside of working hours. This right does not prohibit all after-hours contact, but instead allows the employee to refuse contact such as phone calls and emails in these periods, so long as such refusal is reasonable.

The non-exhaustive factors that assist to determine the ‘reasonableness’ of an employee’s refusal includes:

  • the reason for the contact, including if the matter is one of emergency
  • the level of disruption that the contact causes the employee
  • the nature of the employee’s role and associate responsibilities
  • whether the employee is being compensated to perform work outside of their ordinary hours
  • the personal circumstances of the employee, including caring responsibilities.

The FW Act prohibits the dismissal of an employee for reasonably refusing to respond to the contact.

These changes will come into effect from 26 August 2024 (excluding small business employers, which apply from 26 August 2025). These changes will also be included in Modern Awards at this time.

New Definitions of ‘Employee’ and ‘Employer’

As a result of the amendments, the FW Act will include new statutory definitions of ’employee’ and ’employer’. This involves an assessment of the ‘real substance, practical reality and true nature’ of the relationship between the parties.

These changes will come into effect from 26 August 2024.

New Definition of ‘Casual Worker’

In section 15A of the FW Act. Now, a ‘casual employee’ is one who meets both of the following requirements:

  • the employee has no firm advance commitment to continuing and indefinite work
  • the employee is entitled to a casual loading or rate of pay specified for casuals.

Determining the existence of a ‘firm advance commitment’ requires consideration of the ‘real substance, practical reality and true nature’ of the relationship between the employee and the employer. This includes examination of a number of key considerations, including whether:

  • the employer can choose to offer the employee work
  • the employee can choose to accept or reject this offer
  • the employee has a regular pattern of work.

Additionally, the new amendments also change the casual conversion process. This is now called the ’employee choice’ process. Now, after 6 months of work or 12 months in a small business, employees can choose to notify their employer in writing if they believe they no longer meet the definition of a casual employee and wish to convert to permanency. Employers have 21 days to respond to this request by either converting the employee to permanent work or by giving reasons that the notification has been rejected and giving reasonable ground for the rejection.

Finally, employers will need to provide all casual employees with a copy of the Casual Employment Information Statement as soon as practicable upon the employee commencing work. The statement will also need to be provided again after 6 and 12 months, and every 12 months (or after 12 months for small business employees) thereafter.

These changes will come into effect from 26 August 2024.

What Should Employers Do?

Right to Disconnect

Employers should be mindful of these requirements and only contact employees outside of working hours for the reasonable grounds outlined above.

Definitions of Employee and Employer

The updated definition of Employee and Employer focusing on ‘real substance, practical reality and true nature’ of the relationship between the parties may have particular impact on employers that sub-contract work to others.   These employers should check they have in place a sub-contractor agreement and ensure certain criteria are met.

Casual Employment

Many employers engage casual employees.  Employers should be aware of how they roster casual employees and accept that a casual can reject a shift.  Further, the updated Casual Employment Information Statement will need to be provided to casual employees upon engagement and during their employment.

Interested in Tailored Advice for Your Business?

Are you feeling overwhelmed by the recent changes to casual employment and the right to disconnect? Navigating new regulations can be challenging, but you don’t have to do it alone. Our expert HR consulting team are here to provide personalised advice tailored to your business needs.

Bramwell Partners can work with employers to discuss and put in place reasonable steps to mitigate risk to your business as outlined above. Call us today on 07 3630 5695 to speak with compliance professionals and ensure your business is compliant and to mitigate risk in your business.



The content contained in this publication is intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive, nor does it constitute legal advice. We attempt to ensure that the Content is current, but we do not guarantee its currency. We advise all readers to seek professional and legal advice to suit their individual circumstances.