Update for Employers of Casuals

Federal parliament has recently made changes to the Fair Work Act 2009 (the Act) intended to provide certainty around casual employment.

Definition of casual employment

The Act has been amended to contain a definition of casual employment for the first time.

The Act now provides that if a person is offered employment without a firm advanced commitment to continuing and indefinite work according to an agreed pattern of work, and the person accepts the offer on that basis, then the person will be characterised as a casual employee.

In determining whether that test is met, the Act provides that a court may only have regard to the following considerations:

• whether the employer can elect to offer work and whether the person can elect to accept or reject work;

• whether the person will work as required according to the needs of the employer;

• whether the employment is described as casual employment; and

• 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.

A regular pattern of hours does not, of itself, indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work. That is, the test is focused on the terms offered and accepted at the time of engagement, regardless of the subsequent conduct of the parties or the actual pattern of work over time.

No double-dipping

The Act now enables employers to ask a court to set off any properly described and separately identifiable amounts paid by way of casual loading against an employee’s claim for unpaid permanent entitlements. This new provision operates retrospectively and can be used in relation to older claims.

Right to convert to permanent employment

Employers are now required to give all existing and new casual employees a Casual Employment Information Statement, available at https://www.fairwork.gov.au/employee-entitlements/national-employment-standards/casual-employment-information-statement.

The Casual Employment Information Statement contains information about:

• when an employer is obliged to offer casual conversion;

• when an employer does not have to offer casual conversion;

• when a casual employee can request casual conversion;

• casual conversion for employees of small business employers; and

• the role of the Fair Work Commission in dealing with disputes about casual conversion.

By 27 September 2021, employers (other than small business employers) need to:

• assess whether any of their existing casual employees (employed before 27 March 2021) are eligible to be offered a conversion to permanent employment; and

• advise their casual employees in writing:

• of an offer to convert to permanent employment; or

• the eligibility grounds or reasonable grounds on which the employer is not making an offer to convert to permanent employment.

For new casual employees engaged after 27 March 2021, this assessment and notification process must be completed by 21 days following the 12-month anniversary of their start date.

Assistance

We can provide assistance with:

• contractual terms of engagement for casuals, including characterisation of employment status and offset clauses;

• assessing and advising employees as to casual conversion eligibility;

• responding to requests for casual conversion;

• consultation processes;

• award or enterprise agreement compliance in respect of conversions to permanent employment status;

• casual conversion disputes.

Please contact Rebecca Crawford via email: [email protected] or telephone: (03) 6338 2390.