Workplace rights and obligations for casual employees

The Fair Work Act 2009 (FW Act) has recently been amended to change workplace rights and obligations for casual employees.

What’s the Simplest Possible Explanation of the Changes?

In a nutshell, employers must now offer a pathway to permanent full-time or part-time employment to casual staff who meet certain criteria. This process is known as ‘casual conversion’.

There's a bit more to it though, so please read on...

How is a Casual Employee Defined?

The FW Act amendment defines a casual employee as someone who:

• is offered a job which does not include a firm advance commitment that the work will continue indefinitely with an agreed pattern of work.

• accepts the offer knowing that there is no firm advance commitment and becomes an employee.

OK, So When Does an Employee Become Eligible for Casual Conversion?

An employer is obliged to offer a casual employee the chance to become either permanent full or part-time in writing before 27 September 2021 or within 21 days after the employee’s 12-month anniversary (whichever is later). They must do this if the employee:

• has worked for the employer for 12 months or longer.

• has worked a regular pattern of hours for at least the last 6 of those months on an ongoing basis.

• could continue working those hours as a permanent employee without significant changes.

An employee may also make a request to become a permanent employee after 27 September 2021 under certain circumstances, which are detailed in the Casual Employee Information Statement.

How is This Different to Before?

Previously, the FW Act had not clearly defined a casual employee, however in general they were considered an employee with no guaranteed hours of work or continuity of employment, and as having irregular hours that were worked on an ad hoc basis.

In addition, although casual conversion rights were placed in many modern Awards around October 2018, previously the onus was on the employee to request their employment be made permanent. The FW Amendment has flipped this and now puts the obligation on the employer to offer the conversion.

Can I Refuse a Request for Casual Conversion?

Yes. If the employee is not eligible for casual conversion or (after reasonable consultation) an employer determines that they have ‘reasonable grounds’ not to offer casual conversion. Contact us to learn more about what might be considered reasonable grounds for your business.

Is There Anything Else I Need to Know?

Yes. From now on, employers must give all new casual employees a Casual Employment Information Statement (the CEIS) before, or as soon as possible after, they start work.

The CEIS is designed to inform casual employees of their rights under the terms of the amendment.

Do I Need to Give the CEIS to Existing Casual Employees?

Yes, you do. Small business employers who had less than 15 employees must do this as soon as possible.

Other employers must do so as soon as possible after September 27th, 2021, at which point employees can also request to become a permanent employee.

Are There Exceptions for Small Business?

Yes. small businesses (under 15 employees) aren’t obliged to offer casual conversion, but their employees are entitled to request it as long as they meet the requirements. Small businesses must consider these requests, consult with the employee and only refuse on reasonable business grounds.

How Can StreamlineHR Help?

As ever, Streamline can take the pain out of your employment obligations. In light of this amendment to the FW Act, we can:

• Amend your casual employment contracts to ensure they adhere to the definition of casual employment as specified in the FW Act

• Help you draft policies and procedures to meet your obligations for when team members become eligible for casual conversion after 12 months

• Tie in the Casual Employment Information Statement into your onboarding processes

• Advise when members of your existing casual workforce don’t meet the new definition and help you recontract them where appropriate

• Clarify any element of the new amendment which you may be unsure about

If you would like specific advice and assistance to manage this within your workplace, please contact your primary consultant or get in touch here