When casual becomes committed

On 26 March 2021, the Fair Work Act 2009 (Cth) (the Act) was amended to make significant changes to casual employment. These changes affected every national system employer in Australia that employs casual employees.

One of the key amendments required employers (with 15 or more employees) to proactively offer casual who were eligible, the opportunity to convert to permanent employment.

The deadline to comply with these new provisions, in respect of eligible casuals employed prior to 27 March 2021, passed on 27 September 2021. For employees yet to reach 12 months of employment, this timeframe will be within 21 days of reaching 12 months.

Who is deemed an eligible casual?

If an employee has:

  • been employed for at least 12 months; and
  • during at least the last 6 months of that period, worked a regular pattern of hours on an ongoing basis which, the employee could continue to work as a full-time employee or a part-time employee (as the case may be) without significant adjustment, they will be deemed eligible casuals and must be offered conversion to permanent employment in writing from the employer unless an exclusion applies.

 

If an employee accepts the offer of conversion to permanent employment, the employer must send them a permanent employment agreement for signing and return. If an employee does not respond within 21 days, they are taken to have declined conversion.

The employer must also discuss these matters with the employee before issuing the permanent employment agreement or giving notice.

When an offer is not required

Employers are not required to make an offer of casual conversion if there are reasonable grounds for not doing so, these include (but are not limited to) cases where within 12 months:

a. the employee’s position will cease to exist;

b. the employee’s required hours of work will be significantly reduced; or

c. there will be a significant change in the employee’s pattern/roster of work and those changes cannot be accommodated.

If the employer elects not to make an offer of casual conversion, the employer must notify the employee of this position and the accompanying reasons.

Employer’s obligations

Eligible employees will retain a right to request a conversion indefinitely for the balance of their employment once they become an eligible employee.

The Casual Employment Information Statement must be provided by an employer to an employee before, or as soon as practicable after, an employee commences employment as a casual employee. It must also be provided to existing employees as soon as practicable.

If they have not done so already, employers should:

  • urgently review the status of their employees and identify potential eligible casuals; and
  • update their employment agreements, policies and processes to ensure compliance with the new provisions; and
  • develop an alert system that triggers processes when employees become eligible casuals.

 

As this change to the Fair Work Act is now mandated, it is important employers understand and comply with their obligations regarding their casual employees and take immediate steps to rectify anything that may have been overlooked.

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