In March of this year, the government passed the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill which made significant changes to the Fair Work Act 2009 (Cth) regarding casual workers. Under the new laws, employers were given a 6-month grace period to make any adjustments to implement new rights for casual employees, and provide them with a Casual Employment Information Statement (CEIS). The deadline for this conversion is 27 September 2021, and this article will provide you with a brief guide on the legislative changes and what they mean for both employees and employers.

Changes to the Definition of Casual Employee

An employee will now be considered casual if:

1. The employer makes no firm advance commitment to a continuing and indefinite pattern of work when offering employment; and
2. The employee accepts the offer of employment on the basis that there is no firm advance commitment to a continuing and indefinite pattern of work.

Things to consider when determining if you have made a firm advance commitment to a continuing and indefinite pattern of work include the following:

• Whether the employee can accept or reject work;
• Whether the employee is entitled to casual loadings or specific rates of pay;
• Whether the employee will work according to the needs of the employer; and
• Whether the employment was described as casual employment.

Regular patterns of work will not in and of itself be indicative of a firm advance commitment to a continuing and indefinite pattern of work, however this may be the case in some circumstances. For example, if an employee is engaged on the basis that they will work a fixed amount of shifts on the same days each week for an indefinite period, this is unlikely to constitute casual employment under the new changes to the Fair Work Act.

Casual Conversion

Another key change relates to regular casual employees’ right to casual conversion. Essentially, a casual employee who has been employed for at least 12 months, or who has worked a regular pattern of hours in the past 6 months, has the right to be offered permanent part-time or full-time employment. Offers from employers for conversion must be in writing and given within 21 days from when the employee reaches 12 months of employment.

There are limited circumstances in which an employer is not required to make an offer for casual conversion. This will occur when there are reasonable grounds to not accept the offer based on facts that are known or foreseeable at the time of the decision. These include:

• That the employee’s position will cease to exist within 12 months from when an offer should be made (i.e., once an employee is employed for 1 year) ;
• The hours of work that the employee performs will significantly reduce within the next 12 months;
• There will be a significant change to the days and times that the employee works; and
• Making the offer would not comply with a recruitment or selection process required by law.

If an employer has reasonable grounds to not make an offer, they must provide written notice with detailed reasoning of why the offer is not being made within 21 days from which the employee reaches the 1 year mark.

In the instance an employer does not make an offer or provide notice detailing that they will not offer casual conversion, a casual employee has the right to request an offer for conversion if they meet the above eligibility requirements and:

• The employee has not refused a previous offer of casual conversion in the past 6 months; and
• The employer has not refused a previous request for casual conversion.

This request must be in writing and should appropriately coincide with the regular pattern of hours the employee has been working. Under the new legislative provisions, employers must provide a written response to a request for conversion within 21 days. If an employer chooses to grant a request, their response must detail in writing:

• The type of employment (full-time or part-time) that the employee will be converting to;
• The employee’s work hours after the conversion takes place; and
• The date when the conversion will take place.

An employer can only refuse a request upon consultation with the employee and if there are reasonable grounds to refuse the request based on the circumstances known or foreseeable at the time of refusal.

Given the complexity of these new provisions, it is crucial that small business owners and employers begin assessing the eligibility of existing casual employees for conversion before 27 September 2021 to better manage their obligations to make offers or receive requests for conversion.

Casual Employees Information Statement

The Fair Work Ombudsman has introduced the Casual Employees Information Statement (CEIS) which must be given to all casual employees. The CEIS covers information about the rights of casual employees including:

• 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
• how the Fair Work Commission can act in dealing with disputes about casual conversion

These statements should be provided to all existing casual employees as soon as possible before 27 September and to all new casual employees moving forward. An employer can provide a copy of the CEIS to staff via:

• mail;
• email;
• in person;
• by fax; or
• by emailing a link to a copy of the CEIS available on the employer’s intranet.

How Etheringtons Solicitors can help

Given the various legislative changes in recent times concerning casual employment, it is important to seek legal advice if you are unsure about your employment contract or concerned about your potential liability as an employer. You can contact the highly skilled employment law team at Etheringtons solicitors via our contact form or call 02 9963 9800 for a no-obligation discussion.