Industrial Relations Update – April 2021

James Murphy HR/IR

CHANGES TO CASUAL EMPLOYMENT

On Friday 26 March 2021, the Fair Work Act 2009 (FW Act) was amended to change workplace rights and obligations for casual employees. The changes were made by the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Amendment Act).

These changes came into effect on Saturday 27 March 2021.

What’s changed?

The Amendment Act introduces a:

  • Casual Employment Information Statement
  • definition of casual employment
  • pathway for casual employees to move to full-time or part-time (permanent) employment.

Casual Employment Information Statement

Employers have to give every new casual employee a Casual Employment Information Statement (the CEIS) before, or as soon as possible after, they start their new job.

Small business employers need to give their existing casual employees a copy of the CEIS as soon as possible after 27 March 2021. Other employers have to give their existing casual employees a copy of the CEIS as soon as possible after 27 September 2021.

For more information go to Casual Employment Information Statement at:

www.fairwork.gov.au/ArticleDocuments/724/casual-employment-information-statement.pdf.aspx

Definition of a casual employee

The FW Act has been amended to include a new definition of a casual employee.

Under the new definition, a person is a casual employee if they accept a job offer from an employer knowing that there is no firm advance commitment to ongoing work with an agreed pattern of work.

Once employed as a casual, an employee will continue to be a casual employee until they either:

  • become a permanent employee through:
  • casual conversion, or
  • are offered and accept the offer of full-time or part-time employment, or
  • stop being employed by the employer.

Existing casual employees

Casuals who were employed immediately before 27 March 2021 and whose initial employment offer meets the new definition continue to be casual employees under the FW Act.

Becoming a permanent employee

The Amendment Act adds a new entitlement to the National Employment Standards (NES) giving casual employees a pathway to become a full-time or part-time (permanent) employee. This is also known as ‘casual conversion’.

An employer (other than a small business employer) has to offer their casual employee to convert to full-time or part-time (permanent) when the employee:

  • has worked for their employer for 12 months
  • 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.

Some exceptions apply, including:

  • small business employers
  • if an employer has ‘reasonable grounds’ not to make an offer to a casual employee for casual conversion.

Making and responding to offers and requests

There are rules for how employers and employees need to make and respond to offers. There are also rules for offering casual conversion to existing casual employees.

Casual employees have a right to request to convert to full-time or part-time (permanent) employment in some circumstances. This applies:

  • for casual employees working for a small business – at any time if they meet the requirements.
  • for other casual employees – after their employer has decided not to make an offer for casual conversion.

For more information visit Becoming a permanent employee.

Taking legal action

There is a new avenue to resolve some disputes about casual conversion through the Federal Circuit Court.

When an employee is described as casual, but through court proceedings it is determined that they are not casual, the Amendment Act also introduces a new rule that requires a court to reduce any amounts that the employee could be entitled to by reference to casual loading amounts already paid by the employer to the employee to compensate for those entitlements.

Should you require any further information please do not hesitate to contact bO2 Corporate Essentials on 1300 555 533 or email [email protected]