Casual conversion is coming
article by Nadia Maynard
The Fair Work Act 2009 (Cth) (FW Act) has incorporated amendments relating to casual employment whereby employers must offer casual employees a full-time or part-time position (provided they meet the eligibility requirements). These amendments came into effect on 27 March 2021, and employers have been given until 27 September 2021 to consider conversion offers to their existing casual employees This article explains the amendments relating to casual employment that employers and employees need to know.
Definition of ‘casual employee’
Prior to these amendments, the FW Act did not include a definition of ‘casual employee’.
Section 15A(1) of the FW Act states that a person is a casual employee of an employer if they are offered a position knowing that there is no firm advance commitment that the work will continue indefinitely, with an agreed pattern of work.
Subsection 15(A)(2) states that to ascertain whether an employer’s offer does not include a firm advance commitment, the following must be considered:
- can the employer elect to offer work;
- can the employee elect to accept or reject work;
- will the employee only be required to work as per the needs of the employer;
- whether the employment is described as casual employment; and
- whether the person will be entitled to a casual loading or a specific rate of pay.
Casual conversion
The National Employment Standards have also been amended to incorporate an entitlement for casual employees to become full-time or part-time employees. This is known as casual conversion and both employers and employees have a right to request casual conversion.
An employer is required to offer a casual employee to convert their employment to either full-time or part-time, if the following are satisfied:
- the employee has been employed for 12 months;’
- the employee has worked a regular pattern of hours on an ongoing basis for at least 6 months; and
- the employee could continue working these hours as a full-time or part-time employee without significant changes (collectively ‘the Eligibility Requirements’).
If the above are satisfied, the employer must provide written notice to the employee within 21 days after the employee’s 12-month anniversary,
If an employer decides that they do not want to offer permanent employment to their casual employee, the employer is required to provide the employee with written notice within 21 days after the employee’s 12-month anniversary. The notice must state why they will not be offered a permanent position.
Reasonable grounds for the employer to not make an offer include that they do not meet the Eligibility Requirements or the offer will not comply with the recruitment or selection process by or under a Commonwealth, State or Territory law.
Small business employers
We note that Small Business Employers (an employer with less than 15 employees) have no obligation to convert their casual employees to permanent employment. This does not preclude an eligible casual employee making a request of their employer.
Transition period
Employers have been provided with a transition period to 27 September 2021 to assess all casual employees for conversion (provided they satisfy the Eligibility Requirements). An exception to this applies to employees employed after 27 March 2021.
Time is creeping up employers, so please ensure you have started the conversion process.
Casual Employment Information Statement
The Casual Information Statement has been published by the Fair Work Ombudsman which outlines the casual employment reforms discussed in this article.
It is a requirement that all casual employees are provided with a copy of the Casual Information Statement when they commence employment, or as soon as practicable. A copy can found here: https://www.fairwork.gov.au/employee-entitlements/national-employment-standards/casual-employment-information-statement
If you have any questions or need any assistance in relation to the casual employment reforms, please do not hesitate to contact Holdstock Law.