In February 2024, the House of Representatives passed the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 (“Bill”). Notably, this Bill introduces a statutory right for employees to disconnect outside of work hours and underpins the issue of underpayment.
The new Bill grants employees the right to reject employer communications outside regular working hours, unless the refusal is deemed unreasonable. This right also applies to contractors for work-related contacts. The Bill outlines factors for assessing reasonableness, promoting a comprehensive evaluation. Disputes must first be addressed at the workplace level, and if unresolved, the Fair Work Commission (FWC) can intervene, imposing penalties for breaching FWC orders. The Bill recognises the right to disconnect under the Fair Work Act’s general protection regime, allowing employees to claim against detriments resulting from refusing work-related communication outside regular hours. Enterprises agreements featuring right-to-disconnect clauses will prevail provided they are more favourable than the statutory right. Additionally, all modern awards will be required to incorporate a right-to-disconnect clause.
Underpayment Concerns: A Comprehensive Reform
The Bill also introduces crucial amendments addressing underpayment issues. Notably, the Bill empowers unions to obtain exemption certificates from the FWC, waiving the minimum 24-hour notice requirement for exercising the right of entry when underpayment is reasonably suspected. The recent revisions introduce a pivotal safeguard, specifying that the FWC must be convinced that providing advance notice of entry would impede an efficient investigation into suspected underpayments before granting an exemption certificate.
Furthermore, underpayment penalties are now more severe under this Bill, with fines linked to the seriousness of the offense. Deliberate underpayment by employers can lead to imprisonment for up to 10 years, a maximum fine of $7.825 million, or three times the underpaid amount.
As we navigate the evolving legal landscape, these amendments reinforce a growing commitment to empower employees with robust rights and protections. Understanding and adapting to these changes is essential for employers to foster a workplace environment that aligns with evolving legal standards. Our legal team stands ready to provide guidance.
For further information, contact Lord Commercial Lawyers today at (03) 9600 0162 or email info@lordlaw.com.au.
