Two of the changes to the Fair Work Act (2009) including the new Definition of Casual Employment and the Right to Disconnect have come into effect.

The changes commenced operation from August 26, 2024.

The new Definition of Casual Employment only applies to casual employees that are engaged after August 26, 2024. They mean that in order for the employee to be deemed “casual” the employment relationship has no firm advance commitment to ongoing work, taking into account a number of factors, and also that the employees are entitled to a casual loading or specific casual pay rate under an award, registered agreement of employment contract.

In essence, what this means is when a casual employee is hired their contract must stipulate they aren’t guaranteed any shifts or further engagements. It’s also important to note that if they do work regular hours after being engaged they could be found to be “full time” or “part time” by the Fair Work Commission, despite what is written in their contract.

Whether there is a firm advance commitment needs to be assessed on a few factors including:

• the real substance, practical reality and true nature of the employment relationship; and other factors including:
• whether the employee can offer or not offer to work to the employee, and whether this is happening;
• the employee can accept or reject work and whether this is happening;
• it’s reasonably likely there will be future work available of the kind the employee usually perform in the employer’s business, based on the nature of the business;
• there are full time or part time employees performing the same kind of work in the employer’s business as the work the employee usually performs; and
• the employee has a regular pattern of work even if it changes over time due to, for example, reasonable absences because of illness, injury or other leave.

It’s important to note this isn’t a full list, and other factors may still apply.

For employees of non-small business employers now also have the right to refuse to monitor, read or respond to contact (or attempted contact) outside their working hours, unless doing so is unreasonable. This includes contact or attempted contact from an employer or third party.

Instead, employers and employees are encouraged to discuss contact out of hours and set expectations that suit the workplace and the employee’s role.

When working out whether an employee’s refusal is unreasonable, the following factors must be considered:

• the reason for the contact
• how the contact is made and how disruptive it is to the employee
• how much the employee is compensated or paid extra for:
  • being available to perform work during the period they’re contacted, or
  • working additional hours outside their ordinary hours of work
• the employee’s role in the business and level of responsibility
• the employee’s personal circumstances, including family or caring responsibilities.

Other matters may also be considered.

For small business employers and employees the right to disconnect provisions will come into effect from August 26, 2025.