For NDIS care provider businesses, these changes are set to transform worker management processes. But what exactly is changing? What are your obligations? And how can your NDIS provider business balance service delivery with caregiver rights? 

Employment Law Change #1: The Right to Disconnect 

For most businesses, employees will gain the right to disconnect from the 26th of August, 2024. However, small businesses with fewer than 15 employees won’t have to comply until the 26th of August, 2025.

This will mean employees can refuse to accept or monitor contact outside of their working hours. This includes contact from third parties, such as NDIS participants or the NDIS Commission.

However, workers can only refuse contact when it’s reasonable. Fair Work Australia has several criteria for establishing reasonableness, including:

• The reason for the contact

• How the contact is made and how disruptive it is

• Whether the employee is compensated for being on-call or working additional hours

• The employee’s role and level of responsibility

• The employee’s personal circumstances

Ensuring NDIS Workers Have a Reasonable Right to Disconnect 

The SCHADS Award is expected to be updated to say that the right to disconnect will not be breached where:

• The employee’s on receipt of on-call allowance

• The contact concerns an emergency roster change with under 48 hours’ notice

• It’s about recall to workplace

This doesn’t mean that outside of these situations and outside working hours, you can’t send information to a caregiver. You can message staff, but you can’t expect them to receive notifications, check communication channels or read and respond to those messages. 

For example, you can publish next month’s roster on your workforce management app at any time. But, in most cases, NDIS workers won’t have to check that roster outside their working hours.

Change #2: Casual Employee Definition & Conversion Process

The definition of casual employees will be updated to say that:

• The employment relationship has no firm advance commitment to ongoing work, taking into account a number of factors, and

• Employees are entitled to a casual loading or specific casual pay rate under an award, registered agreement, or employment contract

This new definition only applies to staff hired from the 26th of August, 2024.

Casual staff can also choose to convert to full-time or part-time employees after six months, or in a business with fewer than 15 employees, after 12 months. You can only refuse conversion if employees still meet the definition of a casual employee or you have “fair and reasonable operational grounds”.

Complying with Casual Employee Conversion 

If your NDIS care provider business has 15+ employees: 

You must regularly provide casual employees with a copy of the Casual Employment Information Statement. You should do this before or as soon as possible after they start employment, after they’ve been working for you for six months, after 12 months and then every 12 months after that.

If you have fewer than 15 employees:

You should give casual employees a copy of the Casual Employment Information Statement before or as soon as possible after they start working for you. You then need to provide it after they’ve been working for you for 12 months. You’re not required to provide this information again.

Change #3: The Employee vs Contractor Test

Previously, the employee vs contractor test focused on the wording of the contract. But after the update, “the real substance, practical reality and true nature of the relationship” will also be considered. 

Whether NDIS workers are contractors or employees depends, in essence, on whether you control how, where and when they provide NDIS supports. You can read more about those differences here.

Simplifying Compliance with Workforce Management Software

ShiftCare’s NDIS management software makes it easy to manage rosters while also giving your caregiver workforce control over their work-life balance. Independent contractors and casual employees can set their availability via the app. 

You can publish rosters and advertise new work with plenty of notice so that staff won’t need to check the app outside their working hours. And, with adjustable push notifications, you’ll still be able to instantly contact staff when it’s reasonable to do so.

Try ShiftCare for free.

When do the employment law changes come into effect?

The employment law changes come into effect on the 26th of August, 2024.

Are small businesses affected by the employment law changes?

Small businesses with fewer than 15 employees must comply with the most recent employment law changes, but there’s a one-year grace period for the right to disconnect.

What are the fines for sham casual employee arrangements?

Courts can impose per-contravention fines of up to $93,900 for individuals or $469,500 for businesses.