The Fair Work Act 2009 (Cth) (“FWA”) was recently amended to change workplace rights for casual employees. These amendments place new obligations on employers, and it is important that employers are aware of their new obligations.
A new definition of “casual employment” has been introduced, as well as a pathway for casual employees to move to permanent employment, through casual conversion or an offer of permanent employment. Essentially, the laws confer a statutory entitlement for long-term casual employees to be offered, or to request, permanent employment in certain circumstances.
Employers must also now provide a copy of the Casual Employment Information Statement to their casual employees (in addition to the Fair Work Information Statement which must be provided to all employees).
Casual Employment Information Statement
Employers are required to give every new casual employee a Casual Employment Information Statement before or as soon as possible after they start their new job. Employers must also give all existing casual employees a copy of the Casual Employment Information Statement as soon as possible. For further information, see Casual Employment Information Statement.
Definition of a “casual employee”
Generally, a person is a casual employee if an employer makes an offer of employment on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work, and the person accepts the offer on that basis.
Whether or not a person is a casual employee is assessed on the basis of the offer of employment by the employer and the acceptance of that offer by the employee, and not on the basis of any subsequent conduct of either party.
Casual conversion to permanent employment
Employers must offer casual employees conversion to full or part-time (permanent) employment within 21 days of the 12-month work anniversary if:
- the employee has worked for that employer for at least 12 months; and
- during the past 6 months, the employee has worked regular and systematic hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time or part-time employee.
If the employer does not offer casual conversion to a particular employee, the employer must write to the employee within 21 days of their 12-month work anniversary, advising them of their decision not to offer them the option to convert to permanent employment and their reasons for not doing so. The employer may only base their decision to not offer the employee casual conversion on “reasonable grounds”. What are “reasonable grounds” will depend on the circumstances, but may include:
- that within the next 12 months, the position will no longer exist;
- that within the next 12 months, the employee’s hours of work will significantly reduce;
- that within the next 12 months, the days or times that the employer requires the employee to work will change significantly, and the employee will not be available to worth those days and times; or
- that making the offer of casual conversion would breach a recruitment or selection process required to be followed by law.
The requirement to offer casual conversion does not apply to small businesses (that is, employers with fewer than 15 employees).
Casual employees may request permanent employment from an employer
An employee has the right to request conversion to permanent employment (even if their employer is a small business), if they meet the criteria below.
To be eligible to request casual conversion, employees must:
- have been employed by the employer for at least 12 months;
- have worked a regular pattern of hours on an ongoing basis for at least the last 6 months of their casual employment;
- be able to continue working these hours as a full or part-time employee without significant changes.
Employees will not be eligible to make a request if, in the last 6 months:
- they have refused an offer to convert to permanent employment;
- the employer has advised in writing that they will not be making an offer of casual conversion because there was a reasonable ground not to make the offer;
- the employer has refused another request for casual conversion because there was a reasonable ground to refuse the request.
Casual employees who meet the criteria above can make a request for casual conversion every 6 months.
Employers need to respond in writing to an employee’s request within 21 days, to let the employee know whether the request has been accepted. If the employer refuses the request, their response must include the reason why the request has been refused. The reasons for not accepting a request for casual conversion must be based on a reasonable ground (as described above).
Conclusion
Employers should familiarise themselves with these new changes relating to casual employment, and understand when the right for casual employees to convert to permanent employment may arise.
Processes should be implemented to ensure that existing and future casual employees are provided a Casual Employment Information Statement, and to ensure that offers for casual conversion (where required and appropriate) must be offered to casual employees.
If you or someone you know wants more information or needs help or advice, please contact us.