Legislative change to casuals and conversion
All employers who engage employees on a casual basis should note the recent legislative changes that took effect from Saturday, 27 March 2021. The Fair Work Ombudsman (FWO) has produced a series of brief publications that reflect the recent legislative changes.
Amendments have been made through the passing of the Fair Work Amendment (Supporting Australia’s Jobs and Economy Recovery) Act 2021 (the Amendment Act). The Act includes:
A Casual Employment Information Statement (CEIS);
A definition of casual employment;
A pathway for casual employees to seek to change their employment status to full-time or part-time,
Under the Amendment Act, it is mandatory to provide every new casual employee with a CEIS before, or as soon as possible after, they commence their new job. With regard to existing casuals employed by `Small business employers’ (less than 15 employees), a CEIS has to be provided as soon as possible after 27 March 2021. Other employers are required to provide a copy of the CEIS as soon as possible, after 27 September 2021.
Under the Fair Work Act definition, a person is now defined as a casual employee if they accept a job from an employer as a casual, knowing that there is no firm advance commitment that the work will continue indefinitely with an agreed pattern of work.
Their status as a casual employee will remain unchanged until they either:
Become a permanent employee through:
o Casual conversion, or
o Are offered and accept an offer of full-time or part-time employment.
The Amendment Act has also added a new entitlement to the National Employment Standards (NES) whereby casual employees now have a pathway to seek `casual conversion’ (i.e. changing their status from casual to part-time or full-time employment).
An employer (other than a `small business employer’) has to offer conversion when an employee:
Has worked for their employee for at least 12 months;
Has worked a regular pattern of hours for at least 6 of those months on an ongoing basis;
Could continue working those hours as a permanent employee without significant changes.
The offer must be in writing and be made before 27 September 2021 or within 21 days of an employee’s 12-month anniversary (whichever is later).
If there are disagreements concerning conversion, either party can refer to their industrial instrument (award or EBA) or seek assistance from the Fair Work Commission or the Federal Circuit Court.
The practical application of what is a regular pattern of hours for at least six (6) of those months on an ongoing basis will be the subject of further decisions. As a first response, we recommend payroll staff run a monthly report for casual employees exceeding 104 hours within the preceding six (6) months for consideration and correspond/consult in writing with casual employees exceeding 416 hours for the conversion to part-time engagement. We further recommend providing the casual information statement on a regular basis.
There is no obligation on employees to convert simply to confirm they seek to remain casual.
For queries about casual employees, casual conversion, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 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.