Do you employ casual staff? If so, you need to be aware of the amendments made this year to the Fair Work Act (2009) (“the Act”).
The main amendments are:
- Including a definition of a casual employee;
- Providing a route for casual employees to become full-time or part-time employees (“casual conversion”); and
- Adding an obligation for employers to provide all casual employees with a Casual Employment Information Statement.
The amendments came into effect on 27 March 2021 and apply to all casual employees whether employment commenced before or after this date.
Definition of a Casual Employee
A casual employee is defined as being one that is offered employment on the basis that there is no firm advance commitment to continuing and indefinite work according to an agreed pattern of work. The offer of employment must be accepted on this basis and the person must become a casual employee as a result of the acceptance. What is agreed between employer and employee at the time of engagement determines the casual status and not later conduct.
When determining whether no firm advance commitment to continuing and indefinite work was made at the time of the offer, the following four factors only will be taken into consideration:-
- Whether the employer can elect to offer work and whether the employee can elect to accept or reject this work;
- Whether the person will work as required by the employer;
- Whether the employment has been described as casual employment; and
- Whether the person is being paid casual loading or a specific rate of pay for casual employees under the terms of the offer or an Award.
The definition convers off on the fact that an employee being engaged to perform a regular pattern of hours does not in itself mean that the employee is not a casual employee.
Casual Conversion
Employers must offer to convert a casual employee to full-time or part-time employment when:-
- The employee has been employed for 12 months;
- The employee has worked a regular pattern of hours in the previous 6 months; and
- The employee could continue working the regular hours as a permanent employee with no significant adjustment.
The offer must be in writing and given to the employee within 21 days of the 12-month period.
An employer is not required to make an offer to a casual employee to convert to permanent employment if there are reasonable grounds to not make the offer. The reasonable grounds must be based on facts that are known or reasonably foreseeable at the time of deciding not to make the offer. Grounds such as the position ceasing to exist in the 12-month period after the time of deciding not to make the offer or there being a significant change in the days of work are reasonable in deciding not to make an offer. If it is decided that an offer to convert will not be made, the employer must write to the employee within 21 days of the 12-month period advising that they aren’t making an offer and setting out the reasons why.
Casual Conversion for Existing Employees
By 27 September 2021, employers (other than small business employers, ie less than 15 employees) need to assess whether any of their existing casual employees employed before 27 March 2021, are eligible to be offered to convert to permanent employment.
The employer needs to:
- make a written offer to convert their casual employee to permanent employment (this must be done within 21 days after making the assessment), or
- write to their employee explaining why they won’t be making an offer (this needs to be done within 21 days of making the assessment but by no later than 27 September 2021).
Casual Employment Information Statement
An employer must give the Casual Employment Information Statement to all casual employees before, or as soon as practical after the employment begins. It must also be given to all current casual employees who were employed prior to the amendments coming into effect. The Casual Employment Information Statement can be found and downloaded from the Fair Work Ombudsman website here.
This can be supplied to employees in person, through post or email. The information statement contains information such as the definition of a casual employee, when casual conversion has to be offered and when it doesn’t.
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