Changes to casual employment

On 26 March 2021 the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021, which deals with changes to casual employment, received royal assent. The Bill comes into effect from 27 March 2021 and has a number of implications for employers that employ casual staff. The main changes include:

  • Introducing a definition of casual employment;
  • Casual conversion provisions;
  • Offsetting certain National Employment Standards; and
  • Introduction of a Casual Fair Work Information Statement.

 

What is a casual employee?

Watch our video summarising the below: https://www.youtube.com/watch?v=Y9u66c7AYXU

Section 15A of the Fair Work Act 2009 (Cth) (FW Act) defines a person as a causal employee where:

  • an offer of employment is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and
  • the person accepts the offer on that basis; and
  • the person is an employee as a result of that acceptance.

When establishing whether there was no firm advance commitment, only the following factors are to be considered;

  • whether the employer can elect to offer work, and whether the employee can elect to accept or reject work;
  • whether the person will work ‘as required’;
  • whether the employment is described as casual;
  • whether the person will be entitled to a casual loading or a specific rate of pay for casual employees.

The transitional provisions state that the definition will apply to casuals who commenced employment prior the introduction of the Bill, which means employers need to consider the employment arrangements of all current and future casual employees.

 

Causal conversion

Watch our video summarising the below: https://www.youtube.com/watch?v=Uv0_FO7Q8E8

The Bill introduces a new entitlement to ‘casual conversion’. This means casual employees who meet certain criteria can convert their casual employment to part-time or full-time employment.

 

Offers

Employers with 15 or more employees must offer casual conversion where;

  • the employee has been employed for at least 12 months; and
  • during at least the last 6 months of that period, the employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full‑time employee or a part‑time employee.

For existing casual employees, the offer needs to be made by 27 September 2021, or within 21 days of the employee’s work anniversary, whichever is later.

Employers are not required to make the offer if the employee has not yet been employed for 12 months, or if there are reasonable grounds. Where the employer is intending to not make an offer, the employee must be notified of this in writing within 21 days of making the assessment.

Employers must also adhere to any casual conversation provisions within an applicable award or Enterprise Agreement. The Fair Work Commission has issued a statement that a review of the casual conversions provisions in the Modern Awards will be undertaken.

 

Requests

An employee who has been employed for at least 12 months and during the last 6 months worked a regular pattern of work, may make a request to convert to permanent employment, except in the following circumstances:

  • the employee has already refused a casual conversation offer in the last 6 months; or
  • the employer has notified the employee of a decision not to make offers on reasonable grounds in the last 6 months; or
  • the employer has already refused a request due to reasonable grounds, in the last 6 months.

 

The request must be made in writing and no earlier than 21 days from the 12 month anniversary. For employers with 15 employees or more, employees can only make this request after 27 September 2021. Employees working for small business employers can make the request immediately after 27 March 2021.

 

Information Statement

The Fair Work Ombudsman has released a new Casual Information Statement, along with a revised general information statement. The new Casual Information Statement must be issued to all new and existing casual employees.

 

Small Business Employers must issue the Casual Information Statement to existing casual employees as soon as possible. Employers with 15 or more employees must issue the new information statement to all existing employees by 27 September 2021.

 

Offsetting

Watch our video summarising the below: https://www.youtube.com/watch?v=X_0ihR9xlyw

 

The recent amendments also include an introduction of an ‘offsetting’ provision. Where an employee is engaged as a causal:

  • but is deemed to not be a causal by a Court; and
  • that employee makes a claim for unpaid entitlements (such as Annual Leave and Personal/Carer’s leave); and
  • the employer has paid the employee a casual loading in lieu of any relevant entitlements

the Court must reduce any amount payable by an amount equivalent to the loading.

 

What you need to do

National System Employer with 15 or more employees

  • Issue the new Casual Information Statement to all new casual employees.
  • By 27 September 2021 – issue the new Casual Information Statement to all existing casual employees.
  • By 27 September 2021 – all casuals to have either been offered offer casual conversation in writing, or notification that they will not be offered casual conversation on reasonable grounds.
  • After 27 September 2021- respond to requests for casual conversion within 21 days of the request being made.

 

National System Employer with less than 15 employees (Small Business Employers)

  • Issue new Casual Information Statement to all new casual employees.
  • Issue new Casual Information Statement to all existing casual employees as soon as possible.
  • Respond to requests for casual conversion within 21 days of the request being made.

All National System Employers engaging causal employees

  • Review all existing casual employee contracts of employment and seek employee agreement if any amendments are required to reflect these changes.
  • Update existing casual employment contract templates to reflect these changes.
  • Review all existing company policies on casual employment, including casual conversion to determine if any amendments are required to reflect these changes.

 

Want help drafting your casual employees’ contract of employment? Our team of experts have developed a casual employment contract template and several other forms and templates related to these changes.  

 

National System HR Starter Kit: https://cciwa.com/product/guides/purchase-national-system-hr-starter-kit/

  • Contains:
    • a Causal Employment Contract Template
    • a Casual Conversion Transitional Period Not Eligible Notice

 

Employment Lifecycle Kit: https://cciwa.com/product/guides/purchase-employment-lifecycle-kit/

  • Contains:
    • a Causal Employment Contract Template
    • a Casual Conversion Transitional Period Not Eligible Notice
    • a Casual Conversion Not Eligible Letter
    • a Conversion Offer Letter
    • a Conversion Refusal Letter

 

For more information, contact CCIWA’s Employee Relations Advice Centre team on 9365 7660 or email advice@cciwa.com

 

 

 

 

Leave a Reply