CICA and Holding Redlich
The right for an employee to disconnect from their workplace is a recent change to employment laws that has employers in the crane industry scratching their heads. Along with new rights given to union representatives when exercising their right of entry, employers need to be across the detail of the recent workplace law changes which have shifted the dial on employee rights.
- Subscribe to our free weekly newsletter to receive the latest news from Australasia’s lifting industry.
- Don’t miss a lift and subscribe to our monthly magazine.
- Download our latest digital magazine to catch up on the biggest news and developments in the crane industry.
In this article, we discuss the new ‘right to disconnect’ and its interaction with modern awards as well as provide an overview of recent changes to WHS legislation in Queensland and South Australia that deals with rights of entry and the rights of unions to represent workers and health and safety representatives (HSRs).
Right to Disconnect
Australian workplaces have a new ‘right to disconnect’ which allows employees to refuse contact from their employer (or a related third party) outside their working hours as long as the refusal is reasonable.
Whether or not a refusal will be reasonable will depend on a number of factors including:
- their reason for the contact.
- whether the employee is compensated for:
– being available in the period when contact is made or attempted, or
– working additional hours outside.
- their ordinary hours of work.
- the nature of the employee’s role and level of responsibility.
- the employee’s personal circumstances, including family or caring responsibilities
While many operators in the crane industry may say that contact after-hours is an essential part of the business, particularly with last minute arrangements for crane hire, the new right poses a risk to employers who do not manage those communications reasonably.
This is because the new right will be recognised as a protected right under the general protection regime under the Fair Work Act 2009 (Cth) (FW Act). In other words, if an employee chooses to refuse to respond to an employer’s contact after hours, and the employer takes disciplinary action against the employee because of that refusal, it might be the employer who now will be disciplined with a penalty for breaching the new law.
The new law will apply to large business employers (more than 15 employees) from 26 August 2024 and to small business employers (15 or less employees) from 26 August 2025.
The new laws also require the Fair Work Commission (FWC) to:
• include a ‘right to disconnect term’ in all modern awards by 26 August 2024; and
• prepare guidelines on how this term will operate (there is no legislative deadline for the guidelines).
The content of the model award term has not yet been determined. However, the FWC recognised that terms in modern awards will interact with the new right and so it prepared an audit of all modern awards to identify which award provisions will impact the development of the model ‘right to disconnect’ term, including the Mobile Crane Hiring Award.
As a result of this audit, the FWC identified that, broadly, the following award provisions are likely to be impacted by a ‘right to disconnect’ term: spans of hours, employer notice requirements, requirements for employees to be on call/recall to duty/ remain on standby, and classifications that include manager or supervisory responsibilities. In the Mobile Crane Hiring Award the ‘right to disconnect’ term is likely to impact:
- Shift work (clause 23)
- Employer notice requirements (clause12.3, clause 13.7, clause 15.1, clause 23.10)
- On call, recall and standby (clause 22.9 and clause 22.9(b))
It is expected that these clauses will be amended to take into account the new right. The new draft award terms are expected to be published for comments on 15 July 2024.
Changes to WHS Laws-Queensland
New rights for HSRs and clarification of the rights of WHS Entry Permit Holders (EPH) are also coming into force in Queensland under the Work Health and Safety Act 2011 (Qld) (QLD WHS Act). In particular, there are changes to who can assist or represent an HSR or worker.
There have been many disputes about who can come onto site to help an HSR or a worker, either in a dispute or to give advice to the HSR or worker. To address this confusion, from 20 May 2024, the law now provides that a ‘relevant union’ is able to represent or assist a worker or the HSR. This covers any union which the worker is a member of, or is eligible to be a member, and whose rules entitle the union to represent the worker’s industrial interests. The union must be an employee organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) or Industrial Relations Act 2016 (Qld).
Changes to Rights of WHS EPHS
There is often confusion and debate about whether an EPH can enter a workplace or not. To make it easier for right of entry, the law now that, as of 20 May 2024, an EPH can enter the workplace for the purpose of giving notice of entry and they do not have to first wait outside the workplace. Also notice will not be invalid simply because it contains a minor administrative error (e.g. spelling error or incorrect name of a person or relevant union which is otherwise sufficiently identified in the notice).
An EPH may also enter a workplace to inquire into suspected contraventions of the WHS Act or Electrical Safety
Act 2002 and remain at the workplace, during its normal working hours, for the time necessary to achieve the purpose
of entry. There is now no separate requirement to give additional notice to view relevant employee records or other documents held or accessible at the workplace, or to consult workers about the suspected contravention, if the EPH has already entered and remained at the workplace. This removes the confusion around whether an additional notice of 24 hours is required or not.
And to further protect the EPH, the new law removes one of the methods in which a PCBU could look to delay the EPH, by now providing that a PCBU is not allowed to request the EPH to comply with a WHS requirement if it would unduly delay, unreasonably prevent or hinder the EPH exercising a right of entry.
Changes WHS Laws-South Australia
A number of important changes have also been made to the Work Health and Safety Act 2012 (SA) (SA WHS Act) regarding civil dispute resolution processes for WHS matters, right of entry and improvements for victims and families affected by serious workplace incidents. The new law is due to become operational in the second half of 2024.
Right of Entry
Going forward, while EPHs must still notify SafeWork SA before entering a worksite, they are now no longer required to issue a report to SafeWork SA about the visit. If they do issue a report, then SafeWork SA must now advise the WHS permit holder about what the regulator’s response is to the report.
In balancing issues regarding misuse of the right of entry powers, the South Australian Employment Tribunal (SAET) now has the power to issue a ‘probationary declaration’ against a union if the union has a significant record of refusing or failing to comply with obligations applying to WHS right of entry. A declaration will remain operational for two years, during which time the union:
• cannot seek civil penalty orders from SAET; and
• officials of the union who hold a WHS entry permit must notify SafeWork SA before exercising a right of entry and must provide a written report to SafeWork SA within 14 days setting out the details of their investigation.
Conclusion
A number of recent changes to WHS and workplace laws will impact operators in the crane industry. In particular, employers will need to implement processes to manage the new ‘right to disconnect’ laws as well as the modified WHS right of entry rules. Being well- prepared will reduce the risk of exposure to a claim or a penalty.