FWC accepts union arguments for casual conversion entitlement
The Fair Work Commission (FWC) has arbitrated a dispute by dismissing arguments from a state body that they had reasonable grounds to refuse to convert suitable casual employees to part-time or full-time roles.
The dispute was brought to the FWC by the Community and Public Sector Union (“CPSU”) to deal with a dispute between it and the Technical and Further Education Commission T/A TAFE NSW (“TAFE”). The dispute relates to the operation of the casual conversion provisions of the National Employment Standards set out in Chapter 2, Part 2-2, Division 4A of the Fair Work Act 2009 (FW Act), as those provisions concern the CPSU’s claim for the casual conversion of certain employees covered by the prevailing Enterprise Agreement and the failure or refusal by TAFE to make offers concerning casual conversion.
By way of background, TAFE confirmed to the CPSU in late 2021 that it would not make offers to any eligible casual employees to be converted to permanent employment due to the operation of s.18(1) of the Technical and Further Education Act 1990 (NSW) (“TAFE Act). Traditionally, as is common across all levels of the Public Service, permanent staff appointments in TAFE are based on comparative merit, being the principle that permanent appointments should be awarded to the best person available for the job (commonly referred to as ‘the merit principle’).
TAFE, in submissions before Commissioner Donna McKenna, explained that as a matter of practice, permanent appointments are made after a comparative assessment designed to ensure that appointments are awarded to persons who are not only suitable, in the sense that they have all the skills and qualifications necessary for the appointment, but that they are also the best person for the role. This means that candidates for permanent positions must be ranked in order of merit following a competitive recruitment and selection process, with the highest ranked candidate being deemed to be the best person fit to perform the requirements of the role.
In contrast, TAFE has two methods for engaging casual employees, which are distinct from a comparative merit assessment: nomination and suitability list. Common to both approaches is a determination that a candidate for a casual role is suitable for the role in the sense that he or she has all the skills and qualifications necessary for the appointment, as described in the relevant position description. However, the process for engaging casual employees does not require ranking or comparing candidates or selecting the best person available for the role.
TAFE submitted that they had reasonable grounds not to make conversion offers, consistent with sections 66B and 66C of the FW Act, on the basis (or “ground“) that making the offer would (relevantly) not comply with a recruitment or selection process required by or under a law of a State, namely s.18 of the TAFE Act.
Respectfully, Commissioner McKenna disagreed.
The Commissioner noted that three of the employees presented by the CPSU met the conversion criteria foreshadowed by the FW Act. As she noted, each employee is employed by TAFE as a casual employee (s.66A), each employee has been employed by TAFE for (at least) a period of 12 months beginning the day the employment started (s.66B(1)(a)); and during at least the last six months of that period of 12 months, each employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, each employee could continue to work as a full-time employee or a part-time employee (as the case may be) (s.66B(1)(b)).
Further, the Commissioner was also satisfied that each employee has, at different points in time, been through competitive interview/selection processes in relation to his or her employment by TAFE.
Consequently, in arbitrating the dispute, Commissioner McKenna ordered that casual conversion offers must be made to the three employees.
For queries about employment classifications, casual conversion, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to firstname.lastname@example.org
Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.