We all know employment law can be drier than a week-old bagel. But fear not! This guide translates the legalese into clear, understandable language, making 2024 a breeze for employers and employees alike.
In this week’s edition of Let’s Talk, our experts discuss ways to navigate employment laws in 2024. From understanding new regulations to implementing best practices, we provide essential insights to help both employers and employees stay compliant and informed in the ever-evolving landscape of workplace legislation.
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Jennifer McKennariey, Director of the Australian Workforce Compliance Council Ltd (AWCC) and President of Certified Payroll Practitioners (CPP)
“Businesses face increased employment law penalties with the implementation of the new Wage Theft elements of the Closing the Loopholes bill. These updates necessitate proactive business approaches to avoid criminal employment law penalties and safeguard their reputations.
“Strategies to manage new Fair Work risks include:
- Precise payroll accuracy, preventing underpayments.
- Correctly classifying employees, avoiding entitlement disputes (e.g. paid leave), regulator fines or prosecution.
- Timely superannuation payments avoid penalties and maintains employee trust.
- Larger organisations – Ensure Payroll Compliance is managed by Payroll Professionals, not intermediaries (i.e. Human Resources).
- Small Businesses – Ensure PAYGW, Superannuation and Taxation obligations are managed by an authorised and regulated BAS or TAX Agent.
“Essential breach prevention includes educating stakeholders, employees and management on legislation changes, including associated criminal and civil consequential risks. Implementing modern payroll systems streamlines compliance.
“Professional operational, employment litigation and legislative advice ensures businesses manage associated litigation and operational risks.
“Navigating employment law updates demands vigilance, education, and proactive risk management approaches in both operational and litigation contexts from businesses. Businesses must differentiate operational Fair Work and related legislation risk management (Payroll) including systems, versus litigation risk management (Employment Lawyers) to efficiently manage 2024’s Fair Work Act 2009 civil and criminal changes.”
Walter Scremin, CEO at Ontime Delivery Solutions
“An important employment-related legal issue centres on the labour hire laws applicable when outsourcing work to a contractor or supplier.
“Engaging unlicenced labour hire workers is a sleeper issue because not all companies understand their responsibility. It’s a mistake to assume the responsibility lies solely with the labour provider.
“All states have their own labour hire laws, and there are huge fines for breaches. For example, according to the Labour Hire Authority in Victoria: Maximum penalties exceeding $600,000 for a corporation and $150,000 for an individual apply under the Act for providing labour hire services without a licence, or engaging unlicensed labour hire services.
“Remember, it’s not just the responsibility of the supplier providing the talent – it’s also your responsibility as a company hiring the labour.
“It doesn’t matter whether you are hiring web developers or delivery drivers. Any company engaging third party resources is responsible for checking their suppliers are properly licensed.”
Megan Cant, Partner, Workplace Relations & Safety at Holding Redlich
“Navigating employment law in 2024 will be particularly challenging for Australian SME employers due to significant legislative changes introducing new employee rights and protections as well as new restrictions on forms of work and compliance obligations.
“In a difficult economy, it is essential for business leaders to proactively understand the implications of these changes and develop strategic people plans.
“In the past two years in particular, Australian employers experienced the most substantial changes in a decade to the industrial landscape with far reaching legal reforms across the field, including to the Fair Work Act, through the Secure Jobs, Better Pay and Closing Loopholes reforms, and Respect@Work reforms.
“Changes cover the employment lifecycle, including how an employer can engage a worker, reverting to the pre-2022 distinction between contractors and employees, which historically left many employers in a state of uncertainty.
“Complex compliance obligations for employee wages and conditions are also a pressing concern with the combination of substantially increased civil penalties for underpayment breaches and, from 2025, possible criminal liability.
“The new right to disconnect, the changed process for casual employee conversion and new Fair Work Commission powers to set minimum standards for gig economy workers all add to a challenging employment law landscape in 2024.”
David Price, CEO at Peninsula Australia and Peninsula New Zealand
“The Fair Work Act 2009 is arguably the most important piece of employment law in Australia, providing the minimum terms and conditions for most employees in Australia that are covered by the national workplace relations system.
“The National Employment Standards (NES), contained in the Fair Work Act, set out 11 minimum entitlements which apply to most employees in the private sector, including maximum weekly hours, annual leave, public holidays, requests for flexible working arrangements, notice of termination and redundancy pay.
“Your business may also be covered by an industrial instrument such as a modern award, enterprise agreement or other registered agreement which sets out additional minimum employment conditions that apply to a particular industry or occupation above and beyond the NES.
“The Fair Work Act is supplemented by other federal, state and territory laws – however, it doesn’t apply to every workplace in the country. For example, Western Australia maintains its own state-based workplace relations system that partially covers the private sector in that state.
“It’s important to know what workplace relations system covers your business and your employees in determining what legislation applies and achieving compliance with employment law in Australia. If you’re unsure, seek expert advice.”
Mollie Eckersley, Head of Operations at BrightHR ANZ
“One challenge Australian businesses of all sizes face is navigating the complex employment law landscape. With every state and territory maintaining different laws, and new regulations constantly being introduced it’s not rare to find employers accidentally breaching the law without even being aware of how or when.
“That’s why it’s so crucial to have real-time employment relations advice. Being able to reach trained advisers who can assess a business’ unique circumstances and take them into account when making decisions is invaluable.
“Another best practice is to maintain records and written evidence of your policies, processes, and documentation. This provides a single source of truth for your managers and leaders to follow when a situation arises. And when the law changes, you know exactly what policies and procedures may need to be updated.
“Compliance is always ongoing in the Australian employment law landscape, which means that businesses have to be vigilant and recognise the fact that they will most likely need to get external support. Having this support early on can help prevent greater risks down the line.”
Jess Hui, Senior Associate at Sajen Legal
“With the passing of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 and the Fair Work Legislation Amendment (Closing the Loopholes No.2) Act 2024, employers are staring down the barrel of some significant reforms to Australia’s employment and industrial relations landscape.
“Starting from July 1, 2024, the Fair Work Commission will focus on several key areas:
- Making model terms relating to workplace delegate rights for employees in modern awards, workplace determinations, and enterprise agreements
- Issuing exemption certificates for entry to investigate suspected underpayment
- Implementing the right to disconnect term
- Granting orders for remedy in independent contractor unfair contract disputes
- Protecting regulated workers (also known as ‘employee-like’ workers, including regulated road transport contractors) through minimum standards, unfair deactivation or unfair termination protections, and collective agreements
- Regulating labour hire arrangements to ensure equal pay for the same job.
“The changes to the definitions of employment and casual employees (including casual conversion) will reshape employment relationships based on practical realities rather than just contract terms. These changes are significant and will have unprecedented impact on employment law that understandably has many Australian employers cautiously reviewing.”
Daniel Le, Lawyer at Rankin Business Lawyers
“Businesses of all sizes must be aware of upcoming employment law changes that will affect them. While many changes are coming, two laws are particularly relevant for small to medium-sized businesses.
“From 26 August 2024, a new definition of “casual employee” will be introduced, along with a “right to disconnect” entitlement. However, the “right to disconnect” will not be implemented until 12 months after the initial date, providing a reprieve for small businesses (with 14 or fewer employees).
“The new definition clarifies that an employee will only be considered casual if there is “no firm advance commitment to continuing and indefinite work.” This change may create challenges for employers as some employees might prefer to remain casual for a higher hourly rate while working regular hours.
“The “right to disconnect” prevents employers from disciplining employees for not responding to calls or emails after working hours unless there is an inherent job requirement. This places a greater responsibility on employers to ensure employment contracts are tailored to specific positions and to assess if such out-of-hours contact is necessary.”
Konstantin Klyagin, Founder of Redwerk
“Understanding and complying with employment law is crucial for building a positive workplace culture and avoiding costly legal issues. Strong employment law isn’t a shackle on progress; it actually helps create a happier and, thus, more productive work environment.
“Unfair pay is a common complaint, so it’s vital to stay up-to-date on minimum wage increases like the recent one in Australia. Consult The Fair Work Ombudsman website, or better yet, a lawyer, to ensure you’re paying staff correctly.
“However, underpayment is not the only headache to tackle. You need to devise corporate policies that foster an inclusive, diverse, and safe environment. From August 26th, 2024, employees (except those covered by enterprise agreements) will have the right to disconnect outside working hours. This means respecting their right not to answer emails or calls after work. 90% of Redwerk employees reported an improvement in their work-life balance once we introduced unlimited work-from-home coupled with flexible schedules they enjoyed earlier.
“Another thing to consider is protecting your trade secrets and consumer data. With remote work on the rise, consider Non-Disclosure Agreements (NDAs) to outline employee confidentiality obligations. But keep the scope reasonable – overly broad NDAs can be unenforceable.
“Finally, invest in conducting regular employee contract audits to ensure they are well-drafted and reflect changes in legislation and business needs.”
Neil Modi, Business Development & Marketing Manager at Intellectual Technology & Communication (IT&C)
“In 2024 Navigating employment law is crucial for maintaining compliance and efficiency in the workplace. At IT&C, we understand the importance of staying updated with legislative changes that impact our clients across the Government, Education, SME, Hospitality, and Corporate sectors.
“This year, key legal updates focus on policies for remote work, employee data privacy, and preventing workplace discrimination. We have found that advanced HR management systems and compliance software are fundamental tools for businesses to meet these new legal requirements efficiently and affordably.
“At IT&C ongoing training and development programs are also vital. These programs ensure that employees and managers are well aligned in current legal standards, fostering a culture of compliance and inclusivity. This becomes a crucial element in the performance of business.”
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