The Australian Federal Government made several amendments to the Fair Work Act 2009 in 2021 including setting new provisions for casual employees as part of the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021.

The new changes to casual employment apply to the National Employment Standards (NES) underpinning every Award and included the requirement for Employers to offer permanent employment to eligible casual employees. Effective from 27 September 2021, a review of potential conversions is to be assessed every 6 months.

What is a casual employee?

A definition has now been included in the Fair Work Act 2009, defining a casual employee as:

a person who accepts an offer for a job from an employer knowing that there is no firm advance commitment to ongoing work with an agreed pattern of work.

Fair Work Information Statement

A new Casual Employment Information Statement (CEIS) has been released, for Employers to issue to new casual employees in lieu of the Fair Work Information Statement.

The CEIS consists of detailed information about:

• the definition of a casual employee
• when an employer has to offer casual conversion
• when an employer doesn’t have to offer casual conversion
• when a casual employee can request casual conversion
• casual conversion entitlements of casual employees employed by small business employers
• the role of the Fair Work Commission to deal with disputes about casual conversion.

Small business employers must provide their existing casual employees a copy of the statement as soon as practicable after the commencement date.

Employment Contracts

In response to changes in the legislation, businesses are encouraged to review and assess their employment contracts provided to casual employees and clearly define that casual employment:

• has no guaranteed hours of work;
• will usually work irregular hours;
• has no paid annual leave, personal or sick leave entitlements;
• that the employee is not obligated to always be available; and
• they can have their employment ended without notice, unless notice is required by a registered agreement or award.

Casual Conversion Criteria

Under the new rules, businesses who have more than 15 employees are mandated to offer their casual employees the conversion to full time or part-time permanent employment, provided the employee meets the following eligibility criteria:

• has been employed by the Employer for a minimum of 12 months
• has worked a regular pattern of hours on an ongoing basis for at least the last 6 months; and
• the employee will continue working the regular pattern of hours without significant changes if made permanent on a consistent work schedule.

The employer shall initiate a written offer within 21 days upon the employee’s eligibility and must specify whether the offer is for full-time or part-time employment. Employees are given 21 days to either accept or decline the offer, which should also be made in writing or by signing agreement.

If the above criteria is met, employee’s may also request a conversion from casual to permanent employment.

When should a casual conversion not be offered

In certain circumstances, on reasonable grounds, an employer may not offer a casual conversion to permanency, if within the next 12 months:

• the casual employee’s position won’t exist;
• the casual employee’s hours of work will significantly reduce; or
• the days or times the casual employee needs to work will change significantly, and they won’t be available to work the revised schedule.

Reasonable grounds can also include that making the offer or granting the request would not comply with a recruitment or selection process required by or under a Commonwealth, State, or Territory law. This decision should be communicated to the employee in writing.

If the casual employment conversion is rejected during a review due to the above set conditions, the employee can request another review of their casual conversion after six (6) months.

The impact of the new legislation

The amendments to the Fair Work Act are simple but critical in nature. The Act now provides clarity to the definition and workplace rights of casual workers including the role and responsibilities of Employers.

It is important that businesses have an ongoing framework to ensure compliance with their new obligations under the Act, ensuring revision of potential casual conversions and issuing the new Casual Employment Information Statement (CEIS).

If you need assistance reviewing your compliancy frameworks, employment contracts or completing a casual conversion review, please contact us at Catalyst Central … support@catalystcentral.com.au