As AI-powered tools and workplace monitoring become more common, organisations must navigate complex privacy, employment and governance risks.
A practical overview of the key legal considerations and emerging compliance challenges. Most importantly, we answer your burning questions including: What types of surveillance is lawful? and, Even if we can implement surveillance, should we?
Our presenters cover:
This session is presented by Cecelia Irvine-So, Practice Leader of our Privacy & Education teams. Cecelia is joined by Alexandra Gronow, Special Counsel in our Workplace Relations team, and Cassandra Minett, Lawyer in our Privacy and Education team.
This webinar is essential for anyone looking to stay ahead of the legal risks posed by rapidly evolving workplace technology.
The Albanese federal government has started the year by introducing a suite of significant workplace reforms, passing the Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2023 (Cth) (Act) following robust debate. It follows the passing of the Fair Work Legislation Amendment (Closing Loopholes Act No.1) Act on 7 December 2023. Key changes made in the initial tranche included the criminalisation of intentional wage theft, broadened discrimination protections, increased workplace delegate rights (with the exception of regulated workers) and “same job, same pay” rights for labour hire workers.
The second tranche of workplace relations reforms aim to improve Australia’s workplace relations framework by addressing gaps in the current laws and includes:
In 2022, the majority of the High Court of Australia in CFMEU v Personnel Contracting Pty Ltd and ZG Operations v Jamsek established that when determining if a person is an employee or individual contractor, the written contract between the parties takes primacy.
The Act amends the Fair Work Act 2009 (Cth) to override this principle. New section 15AA of the Act will require the ordinary meanings of ‘employee’ and ‘employer’ be determined by reference to the ‘real substance, practical reality and true nature’ of the relationship. The ‘totality of the relationship’, including how the contract is performed in practice, must be considered when ascertaining the real substance, practical reality and true nature of a relationship.
This change will be particularly relevant to independent contractor relationships and claims that a relationship should be characterised as employment. These issues will now be subject to a broader set of considerations than the written contract between the parties and it will be more difficult for employers to rely solely, or in the main, on the terms of a written contract to the exclusion of how the relationship works in a practical sense. Employers should also keep in mind that a person may be engaged as an independent contractor at first, but then due to the conduct of the parties afterwards, be found to be an employee.
This legislative change will only be relevant for determining entitlements under the Act. Whether a person is an ‘employee’ for the purposes of taxation, superannuation and workers compensation will continue to be determined by other tests.
An interesting element of this legislative change is that contractors who earn over a ‘contractor high income threshold’ (currently $167,500), and who are already engaged at the time the Act commences, may ‘opt out’ of the amended definition of employment. However, they will have the ability to revoke that ‘opt out’ decision at any time by giving written notice.
The Act introduces two key changes in relation to casual employment.
New definition of casual employee
The reforms introduce a new definition of ‘casual employee’ as follows:
The factors that are relevant to assessing whether there is a firm advance commitment include consideration of the real substance, practical reality and true nature of the employment relationship, whether this is verbal, written or could be inferred by conduct.
Factors which indicate the presence of a firm advance commitment include:
This change signals a move away from an employee’s casual status being assessed based on contract only, to being assessed having regard to what happens in practice.
The Act removes the ban on employees being both casuals and engaged under a fixed-term contract, excluding for academic university staff.
New pathway to casual conversion
The Act removes existing casual conversion provisions and introduces an “employee choice” framework.
Under the new casual conversion framework, a casual employee will be able to give their employer a written notice if they believe their employment is no longer casual, having regard to the new definition set out above. An employee can only give this notice after 6 months of employment if they are employed by a non-small business employer, and 12 months of employment if they work for a small business employer.
This new pathway removes many of the obligations employers had under the previous casual conversion provisions. Rather than making their own assessments and offering conversion where an employee meets certain requirements, employees need to initiate the shift to permanent employment and employers will need to respond to written notifications within 21 days after they are made. Employers must respond in writing, confirming the employee’s new status and hours of work if the notification is accepted. If employers do not accept the notification, they must set out why.
The Act provides that an employer may decline the employee notification, if:
The Act introduces anti-avoidance provisions to ensure casual employees are engaged properly. This includes requirements that employers must not:
Employers who have incorrectly classified an employee as an independent contractor may be penalised for sham contracting, unless they can prove that the amended sham contracting defence applies.
Prior to the reforms, an employer needed to prove that they did not know and were not reckless as to whether the contract was an employment contract rather than one for services.
The narrowed defence provides that an employer has not contravened the sham contracting provisions if, at the time of the representation, the employer reasonably believed the contract of employment was a contract for services.
In determining whether the employer’s belief was reasonable, courts will be required to consider the size and nature of the employer’s enterprise, and will have discretion to consider any other relevant matters.
The Act also introduces a right for employees to refuse contact from employers or third parties outside their paid working hours, unless that refusal is unreasonable.
There is a set list of matters which must be considered when deciding whether a refusal to contact is unreasonable or reasonable. This will operate in a similar way to existing provisions in the Act which relate to reasonable additional hours. In determining whether a refusal to respond is unreasonable, regard must be had to:
The right to refuse contact will be a ‘workplace right’ for the purposes of the Act’s general protections regime. This means that if the employer and employee cannot resolve their dispute over the right to disconnect, either party can apply to the Fair Work Commission to make an order to stop refusing contact, to stop taking certain actions, or to otherwise address the dispute.
The Fair Work Commission will be required to issue written guidelines about what is reasonable or unreasonable contact from an employer or third party, which we expect will greatly assist employers and employees to have conversations about the right to disconnect. The right to disconnect provisions will have a delayed commencement for small businesses.
The maximum civil pecuniary penalties available under the Act for breaches by body corporates of the National Employment Standards, modern awards, enterprise agreements and minimum wages will increase at least fivefold:
The maximum civil penalty for a contravention of the civil remedy provisions “associated with an underpayment amount” is the higher of:
These increases only apply to breaches by body corporates and do not apply where the organisation is a small business employer at the time an application for a penalty is made.
Further, there are new criminal offences for specific intentional underpayments. The criminal offence carries a maximum fine for body corporates and a term of imprisonment of up to 10 years or a fine for individuals. Where the Courts can determine the underpayment amount, the maximum fine that a Court can order against a body corporate is the greater of 3 times the underpayment amount and 5,000 penalty units (currently $1,565,000) for an individual or 25,000 penalty units (currently, $7,825,000) for a body corporate. If the Court cannot determine the underpayment amount, the maximum fine for an individual is 5,000 penalty units ($1,565,000) and for a body corporate is 25,000 penalty units ($7,825,000).
Timing
We summarise below when each change will come into operation:
The reforms summarised in this article highlight the importance of employers reviewing their engagement of workers, including whether:
Our Workplace Relations team can assist employers to minimise the risk of breaching the sham contracting obligations which commenced on 27 February 2024, and prepare for the commencement of other significant workplace relations reforms in August 2024.
The reforms follow previous changes to Australia’s workplace laws made by the federal government in 2022, including the Secure Jobs, Better Pay Bill and the new limits on fixed term contracts, and changes made in 2023.
Please contact us for more detailed and tailored help.
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.
Having a space to express breastmilk in the workplace can be a critical part of a breastfeeding parents’ transition back to work after parental leave.
Fortunately, there are laws in place to protect breastfeeding parents who need to express breastmilk in the workplace. The failure of an employer to provide a private, clean and appropriate space for expressing breastmilk can amount to unlawful discrimination. It may also be unlawful discrimination to have a rule that workers cannot take short breaks during the day, as this may disadvantage breastfeeding women who need to take breaks to express breastmilk. An employer may not dismiss an employee who breastfeeds or expresses breastmilk because of assumed health and safety risks in the workplace.
Breastfeeding discrimination can arise where:
In one of the first reported anti-discrimination cases involving breastfeeding parents, the ACT Civil and Administrative Tribunal (Tribunal) recently found that a KFC franchisee indirectly discriminated against a worker by failing to provide an adequate solution for one of its workers to express breastmilk.
The Respondent in this case was a large private KFC franchise owner in Australia. The Applicant was a woman who started working for the Respondent when she was 14 years old in 2015 and worked her way up to the position of store manager. She gave birth to her daughter in June 2021 and was excited to return to work in November 2021.
The Applicant had a lengthy and, at times difficult, negotiation process with the Respondent’s management about a suitable return to work arrangement to accommodate her need to express breastmilk at work.
In November 2021, the Respondent allowed the Applicant to use a fridge to store her breastmilk and use the wash sink, but otherwise:
The Applicant then lodged a complaint with the ACT Human Rights Commission.
Eventually, a flexible work arrangement was approved, which included a pop-up tent and foldout chair in the storeroom. However, after the Applicant returned to work, the Applicant found this solution to be unsuitable. Due to the thin walls, the sounds of expressing milk were audible to staff and as there was no door, any staff member could walk in at any time.
The Applicant instead proposed to take unpaid meal breaks during her shift to express breastmilk, but this request was denied. From time-to-time, the Applicant left the store to express milk at the parent room in the nearby mall, but as there was frequently no other manager on site, she had to express at a much later time which caused her physical pain and discomfort.
The Applicant claimed that she suffered significant mental harm and a reduced capacity to work because of the Respondent’s failure to accommodate an arrangement which allowed her to express breastmilk at work.
The Tribunal found the Respondent indirectly discriminated against the Applicant by imposing a condition requiring managers to remain on site unless another manager was available on site who is certified in OH&S. This condition disadvantaged workers who breastfeed and express breastmilk (a protected attribute) and was not reasonable in the circumstances.
The Tribunal found that the Applicant had no choice but to accept a demotion or express before or after her shifts, disadvantaging her. The tent inside a doorless storeroom that was eventually provided was not even a ‘pass’ level solution, causing embarrassment and discomfort, which was also a form of disadvantage.
To address the Applicant’s request, the Respondent had multiple options to consider, such as adding a storeroom door, transferring the Applicant to a nearby store with a private, appropriate space to express breastmilk or providing junior workers with OH&S training so they could act in her place during the brief periods she left the store to express.
Employers and other duty holders are required to make suitable arrangements to support workers transitioning back to work after parental leave or to accommodate breastfeeding, and a failure to do so may amount to unlawful discrimination.
Requests from breastfeeding workers to cater for their need to express breastmilk are a normal part of the modern workplace, and so employers may wish to proactively consider how to accommodate such requests in a positive and appropriate manner. Other duty holders such as councils, sporting organisations, educational institutional and service providers should also take steps to reasonably accommodate people to breastfeed.
The Tribunal in this case was also critical of the process the Applicant had to go through to request her return to work arrangement. At only 20 years old, she was interviewed on her own by two senior men who questioned her in detail about the breastfeeding process and made her feel uncomfortable. The suggestion by a senior female manager that the Applicant express in the toilet was also criticised as not being a modern solution for breastfeeding parents at work. Employers may consider developing a clear policy and process for how to address such requests, to avoid an unnecessarily complicated or intimidating process.
Moores assists clients by:
If a discrimination issue arises, we can support you in your response and investigation.
Leah joins our Corporate Advisory Team at Moores and leads our Workplace Relations team.
Leah brings over 25 years’ experience as a workplace relations lawyer in private practice and in-house and has recently managed high-profile enterprise bargaining and wage compliance disputes at Coles, Uber, and ANZ.
Leah leads a team of skilled workplace relations specialists to deliver employment solutions to our clients including industrial relations and compliance work in commercial and for-purpose sectors such as education, disability, health, aged care and housing.
Skye Rose, fellow Practice Leader in our Corporate Advisory Team said, “We are thrilled to welcome Leah to Moores. Leah’s expertise aligns seamlessly with our desire to assist and advise our clients in the ever-evolving landscape of workplace law. Leah is a talented workplace relations lawyer who brings a wealth of experience to Moores. I have every confidence that our clients will value her commercial nous, creativity, commitment to excellence and collaborative approach as much as we do”.
Leah will work closely with Skye and members of the Corporate Advisory Team, which includes expertise in charity and NFP law, safeguarding, governance, human rights and discrimination, privacy and data security, regulatory compliance and investigations.
When asked ‘why Moores?’ Leah said, “I chose Moores because of the skilled people I would be working with, the diverse client base and the workplace culture that Moores offers.”
Welcome aboard Leah.
To find out more, please do not hesitate to contact us.
No one likes a zombie and changes to the Fair Work Act 2009 (Cth) aim to rid them once and for all.
If your organisation or company has an older enterprise agreement that it has not replaced or formally terminated (through the Fair Work Commission), then you may need to think about your ‘zombie’ which may cease to exist come 7 December 2023.
The term ‘zombie agreement’ was more colloquially used prior to the first set of significant workplace reforms introduced by the Federal Government to describe older enterprise agreements. Specifically, those made before the Fair Work Act 2009 (Cth) began operating in 2009.
Enterprise agreements are usually renegotiated and replaced every 3 to 5 years given that the maximum ‘life’ of the agreement under the legislation is 4 years. However, if an agreement, even a very old one made 15 or 20 years ago, is not replaced by another Fair Work Commission approved enterprise agreement, or terminated by the Fair Work Commission, it still operates. That can create some complexity and in some cases, a disadvantage for employees where legislative and other standards have changed but the workforce are not entitled to the benefit of the changes because of the preservation of these older agreements.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) addresses this curious feature of older agreements. From 7 December 2023, ‘zombie’ agreements, that is, agreements made prior to 1 July 2009, will cease to operate through the legislative mechanism, even if another agreement is not in place or employees have not agreed to terminate the agreement.
The Fair Work Commission has the power to extend the life of the ‘zombie’ on application from a party to the agreement. That process involves making submissions and providing evidence to the Commission about why the agreement should be extended.
Importantly, after this date, assuming no extension has been granted, the relevant modern award which would otherwise cover the workforce will automatically replace the zombie agreement. Compliance with an award is a statutory obligation and a breach of that obligation can expose an employer to a Court prosecution, regulator investigation and/or penalties of up to $93,900 for a single breach.
If your organisation has a ‘zombie’ lurking, then the steps to consider in preparation of the change in December 2023 include:
The legislative changes do enable a party to seek to extend the life of the zombie agreement. The extension can be for no more than four years.
The legislation provides that the FWC must extend the default period if it is satisfied that:
In Suncoast Scaffold Pty Ltd 2009 [2023] FWCFC 105 (Suncoast), the Full Bench considered whether to extend the default period of the collective agreement-based transitional instrument (zombie agreement) to 31 March 2027. This required assessment of the particular criteria which states an extension must be granted if:
The Full Bench provided detailed guidance on how the requirement in that section differs from the well-known ‘BOOT’ test. The Full Bench stated (emphasis added):
“… The requirement for the better off overall criterion in subitem 9(b) to be assessed by reference to the award covered employees ‘viewed as a group’ appears to allow for the possibility that the criterion may be satisfied, notwithstanding that some individual employees are not better off overall than under the relevant award, as long as there is a discernible advantage for the employees considered as a collective. Further, there only needs to be satisfaction as to the ‘likelihood’ of such a discernible collective advantage; that is, it only needs to be probable rather than certain. Taking these matters together, it is apparent that the better off overall criterion is less stringent that the BOOT in s 193 of the FW Act.”
The Full Bench concluded it would not be reasonable in the circumstances to extend the default period for the agreement given that:
Our Workplace Relations team can assist you to review your existing industrial instrument(s) and develop a pathway forward before the December deadline, including considering whether to make an extension application.
Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to your organisation.
The COVID-19 pandemic forced many employers to think about traditional and new ways of working, including how hours of work are performed and the flexibility that more and more employees are coming to expect from their employer. The post-pandemic working world has seen an increase in many employers being willing to facilitate flexible working arrangements.
However, flexible work arrangements aren’t new. The right to request a ‘flexible work arrangement’ has been part of the National Employment Standards in the Fair Work Act 2009 (Cth) (FW Act). Under that standard, some employees (such as parents, workers with a disability and pregnant workers) are eligible to request flexible work arrangements. Those arrangements can include changes to start and finish times, part time work, job sharing and working from home. Section 65 of the FW Act sets out the requirements that must be complied with when making and responding to flexible work arrangements (see our article: Constraints for employers when balancing flexible work). Recent changes have seen further enhancement of this important standard as part of the FW Act.
While flexible work arrangements offer considerable benefits to both employers and employees, the arrangements can sometimes blur the boundaries between employees’ personal and working lives, leading to ‘hidden overtime’.[1]
There is often a tricky balance for employers and employees to strike where the job demands of a position require some reasonable additional hours to be worked but where a flexible work arrangement is in place which defines work hours more clearly. When is a reasonable expectation not so reasonable or even more significantly, unlawful?
Under the National Employment Standards, employees are entitled to refuse to work additional hours if they are unreasonable.[2] Whether additional hours are reasonable requires a consideration of the following factors:
Many employment contracts include a term stating that the employee may need to work additional hours as required to fulfil the requirements of the role. For ‘salaried’ workers (those paid on an annualised basis), the clause may even state that the employee ‘agrees’ that their salary adequately compensates them for any additional reasonable hours worked.
However, depending on the circumstances, relying on a contractual term may not be sufficient. The expectation of reasonable additional hours is not always lawful. For example, in 2022, the Federal Court of Australia held that it was unreasonable for a knife hand at a meat wholesaler to work an additional 12 hours per week.[4] While a contractual term is one positive step that employers can take to indicate an employee agrees to working overtime, employers are also required to assess what is ‘reasonable’ by engaging with each of the elements in section 62(3).
Additionally, employees who are covered by an award or enterprise agreement may be entitled to receive overtime pay for additional hours worked. Employers are advised to therefore monitor overtime worked by award covered employees, even where they are paid on an annualised basis, to ensure they are remunerated at or above their minimum award entitlements for the hours worked.
Working additional hours can also increase occupational health and safety risks. In most Australian jurisdictions, ‘persons conducting a business or undertaking’ (PCBU) have an obligation to ensure, as far as is reasonably practicable, that employees (and other persons) are not exposed to risks to psychological health and safety arising from work being performed for the PCBU.
In the context of flexible working arrangements, employers may need to be vigilant of the practical effect of flexible work arrangements and to continually monitor hours of work to ensure that ‘flexibility’ isn’t leading to safety risks because of the way the hours of work are performed or how many hours are worked. A failure to adequately address safety risks may expose an employer to investigation or prosecution by the safety regulator, increased absence due to ill health caused by unreasonable work hours and demands and/or claims for compensation due to a workplace ‘injury’.
Employers can take positive steps to manage requests for flexible work arrangements, including:
Our Workplace Relations team can provide you with practical advice regarding flexible work arrangements and reasonable additional hours and strategies to strike the right balance in your workplace. We can also assist you with designing your flexible working policy to ensure that you meet your legal obligations and maximise the benefits that flow from flexible work arrangements.
[1]https://www.oecd.org/coronavirus/policy-responses/productivity-gains-from-teleworking-in-the-post-covid-19-era-a5d52e99/ (accessed 14 July 2023).
[2] Fair Work Act 2009 (Cth), s 62(2).
[3] Fair Work Act 2009 (Cth), s 62(3).
[4] Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512.
In 2018 in WorkPac v Skene, the Full Court of the Federal Court considered what casual employment really means. Mr Skene claimed that he was really a permanent employee, even though he was hired and paid as a casual. The case sought to challenge the longstanding consensus that the essence of casual employment is a lack of a firm advance commitment as to the duration of employment or as to the days (or hours) of employment.
In Skene, the Federal Court said casual employment depends on the contract terms and how the parties behave during the employment relationship. The Federal Court found that Mr Skene’s and WorkPac’s actions showed a “firm advance commitment” to the employment – for example, Mr Skene’s shifts were programmed many months in advance. This and other indicators led the Court to uphold Mr Skene’s claim with a finding that, despite being hired and paid as a casual, Mr Skene was entitled to paid annual leave and personal leave like a permanent employee; those leave entitlements needed to be calculated based on his casual rate of pay (with the 25% casual loading).
That result was at odds with the prior understanding by employers that casual loading compensated a casual for not receiving paid leave entitlements. Mr Skene was described as “double dipping” because he received both the payment and the leave at his casual rate of pay.
WorkPac brought Mr Rossato’s case to the Federal Court and the facts were very similar to the Skene Case but with different legal arguments. Unsurprisingly, the Federal Court upheld its decision in Skene. WorkPac then appealed to the High Court.
The High Court overruled the full Federal Court’s finding. The High Court’s starting point in the Rossato appeal was the same as in Skene and the earlier Rossato case, namely: casual employment relationships lack a firm advance commitment to ongoing employment. The High Court, though, said a “firm advance commitment” must be a legal commitment, not a commitment that one divines from how the parties conduct themselves after the written contract is put in place. Mr Rossato, as a long term regular casual, may have had a “reasonable expectation” of continuing employment, but that is not a legal commitment to ongoing employment.
The High Court’s decision provides clarity that if an employee is hired on a casual basis (that is, signs a written casual employment contract that reflects the casual nature of that engagement) and is paid a casual loading, they do not become permanent just by how the parties behave. Planning out shifts in advance is not enough to make a casual employee permanent. For a casual employment relationship to become permanent, there needs to be a legally enforceable commitment to ongoing employment; put another way, the parties need to amend the employment contract. An expectation/feeling is not enough to attract the legal entitlements of permanent employment.
The decision is significant because it limits an employer’s liability to pay other leave entitlements to casual employees notwithstanding that they received a casual loading.
However, a note of caution that where the contract is only partly in writing, there may be more uncertainty about the nature of the relationship. Other factors, such as way the employer and employee engage with each other, may be relevant in determining the nature of the employment relationship. The Rossato judgment aligns with the new statutory definition of casual employment that the Federal Government introduced in March 2021, which amended the Fair Work Act 2009 (FW Act). Some employers are not covered by the FW Act and guidance from the High Court decision will be particularly important for them.
While the High Court did not rule on the set off argument before it, the FW Act was amended earlier this year to provide a mechanism for a court set off casual loading payments against other entitlements such as leave payable to permanent employees. Click here for Moores’ article on the amendments to the FW Act.
Employers now have certainty that when they engage a casual employee on a written contract of employment that expressly describes the relationship as a casual one without a firm advance commitment of further work, the relationship is a casual one. As set out in the (now amended) FW Act, it is also helpful to set out in the employment contract that a casual loading is payable, that the employee can elect to accept or reject work and that future work is not guaranteed.
It is timely for employers to review their casual employment arrangements to ensure that written contracts are in place. It may also be timely for employers to review their casual employment contract template to check that it contains the key components that would validate the casual relationship.
As well as the recent High Court decision, there have been other changes in this area this year such as the requirement to issue the Casual Employees Information Statement to casual employees and the right to conversion now available to some casual employees.
For more information and advice about the implication of these changes for your organisation and its management of casual employees, Moores can help so please get in touch.
Note: This article contains general information only. It is not legal advice and should not be relied upon as such. You should always obtain legal advice based on your needs and circumstances before taking action on the matters referred to in this article.