Amendments to Fair Work Act – Casual Employment

Commercial

On 26 March 2021, the Fair Work Act 2009 (Cth) was amended to clarify the workplace rights and obligations of casual employees.

Casual Employee Defined

The recent amendment to the Fair Work Act 2009 (Cth) (“the Act”) introduced a new definition for ‘casual employee’.

A person is a casual employee if:

  1. An offer of employment is made on the basis that there is no firm advance commitment to ongoing work with an agreed pattern of work;
  2. That offer is accepted by the person; and
  3. The person is an employee as a result of that acceptance.

In determining whether a ‘firm advance commitment to ongoing work’ exists, Courts may only consider the following elements:

  1. Whether the employer can elect to offer work and whether the person can elect to accept or reject work;
  2. Whether the person will work as required according to the needs of the employer;
  3. Whether the employment is described as casual employment; and
  4. Whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

Casual Conversion

The amendment also includes an addition to the National Employment Standards which outlines the process of ‘casual conversion’, a pathway for casual employees to convert to  permanent employment.

The new provision requires any employer (that is not a small business) to offer a casual employee permanent full-time or part-time employment if the employee:

  • Has worked with the employer for at least 12 months;
  • Has worked a regular pattern of hours for at least the final 6 months of those months on an ongoing basis; and
  • Could continue working those hours as a permanent employee without significant changes.

Casual employees are also given the right to request an employer for conversion to permanent employment, provided they meet the above criteria. However, the casual employee cannot make a request if in the last 6 months if:

  • They have refused an offer from their employer to convert to permanent employment;
  • Their employer has informed them in writing that they have reasonable grounds for not making an offer of casual conversion; or
  • Their employer has refused a previous request for casual conversion because there were reasonable grounds to refuse the request.

Exceptions

An employer may decide to not offer or refuse casual conversion if the casual employee does not meet the criteria outlined above. Additionally, an employer may not offer or refuse casual conversion to a casual employee who does meet the criteria if they have ‘reasonable grounds’ to do so.

A small business employer (any employer with fewer than 15 employees) is not required to make an offer to casual employees for casual conversion. However, a casual employee may request a small business employer for casual conversion at any time given they meet the criteria.

What this means for employers

  1. Small business employers are required to give their existing casual employees (employed before 27 March 2021) a copy of the Casual Employment Information Statement (CEIS) as soon as possible after 27 March 2021.
  2. All other employers have to give their existing casual employees (employed before 27 March 2021) a copy of CEIS as soon as possible after 27 September 2021.

Following the introduction of a new definition of casual employee, the assessment of whether a person is a casual employee now occurs on the basis of the offer of employment, regardless of any subsequent conduct of the parties.

If you would like to discuss your current causal employment arrangement or have any questions, please contact our team for a confidential discussion.

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