More loopholes to close on insecure work … and a new right to disconnect from work

by Fiona Macdonald
AAP

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Late yesterday the final part 2 of the government’s Closing Loopholes industrial relations bill was passed by the Senate.

This means Australia’s employment laws will be further amended to tackle the problems of insecurity and low pay, with the changes targeting casual employment and gig platform work arrangements. The package also includes a new right for employees to disconnect from work outside their paid work time.

A new definition of casual employment will be included in the Fair Work Act, making it harder for employers to classify their employees as casual when, in reality, the employees are required to work regular hours for a continuing and indefinite period. The legislation also establishes a new pathway for casual employees to seek permanent status.

The casual employment changes should go some way to stopping and reversing the growth of so-called ‘permanent casual’ arrangements, which have become widespread. Workers in these arrangements are actually in permanent jobs while they are given casual employment status.

Casual employment means lower pay, little or no job security and no right to paid leave. Lack of employment security in casual employment creates all sorts of other insecurities for workers, such as limiting access to finance, secure housing and childcare. According to government estimates, there are over 850,000 casual employees who could be eligible to seek permanency under the legislation.

Gig worker or ‘employee-like’ reforms in the Closing Loopholes package aim to address low pay and poor working conditions experienced by workers on digital platforms who are engaged as independent contractors, are low-paid and/or have very limited bargaining power, such as delivery riders and rideshare drivers. The Fair Work Commission will now be able to make orders for minimum standards for these digital platform workers.

This ‘employee-like’ reforms extend the scope of Australia’s Fair Work Act to provide protections and rights to vulnerable workers, who are not employees. This should prove to be an effective response to the challenges facing vulnerable ‘gig workers as argued by the Centre for Future Work’s David Peetz has argued in a recent Centre for Future Work report on self-employment.

Closing Loopholes also includes a ‘right to disconnect’ from work, an initiative of the Greens, included to get the minor party’s support for the bill. In future, employees will have a right to refuse to respond to contact from their employers outside their scheduled hours if the contact is unreasonable.

Go Home on Time Day research conducted in 2022 by the Centre for Future Work found that 8 out of every 10 workers supported a right to disconnect. This level of support is not surprising, given the amount of unpaid overtime workers are doing. In 2023, the Centre for Future Work reported employees are, on average, working 5.8 hours a week — total of 280 hours, or 7 weeks, a year of unpaid overtime per employee.

The new right to disconnect is a practical solution for many employees that should also assist to shift cultures in workplaces where reliance on unpaid overtime has become the norm.

Some employer groups are arguing the Closing Loopholes legislation ‘goes too far’. To the contrary, if there is a weakness in the legislation, it is that it does not always account for power imbalances in the relationship between employees and employers. And this may limit the effectiveness of the some of the new provisions.

As a result of amendments put forward by independent David Pocock and the two Jacqui Lambie Network senators in response to employers’ concerns, a number of the bill’s provisions will be weaker in the final legislation than they were in the government’s original bill.

The amended bill passed by the Senate yesterday provides greater scope for employers to refuse casual employees’ requests for permanent status. The proposed prohibition on employers unreasonably contacting employees out of work hours has been removed. In the amended bill the prohibition is now on employers punishing employees who refuse to monitor and respond to unreasonable contact.

The Closing Loopholes part 2 reforms are welcome changes that will limit some of the damage and disadvantage caused by insecure work and the encroachment of (unpaid) work into life outside work.

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