The Fair Work Act 2009 (Cth) (“the Act”) was amended in March 2021 to amend crucial provisions in relation to casual employment. Those amendments require employers to take action before 27 September 2021.
The crucial amendments to the Act are:
- Casual employees are those who are offered and accept a job with no firm advance commitment that work will continue indefinitely with an agreed pattern of work. The assessment of casual employment is made at the time that the employee accepts the job offer.
- In determining whether there is no firm advance commitment, the only relevant factors are whether:
- The employer can choose to offer the employee work and it is the employees choice whether to work or not;
- The employee is offered work when the employer needs them to work;
- The employment is described as casual;
- The employee is paid a casual loading or a specific rate for casual employees.
- Causal employees have the right to become permanent, either on a full time or part basis, if a number of conditions are met. The process is known as casual conversion and can be initiated by the employee (known as an “offer”) or by the employee (known as “requests”). There are also different requirements for “Small business” (businesses with 15 or less full time equivalent employees) and “Non-Small Businesses” (businesses with 15 or more full time equivalent employees). The key points are summarised in the table below:
| Small Businesses | Non-Small Businesses | |
| Offer | · No obligation to make offer | · Employer must offer casual conversion if the employee has been employed for at least 12 months, they have worked a regular pattern of hours for at least the last 6 months and those regular hours could continue when the employee is made permanent without significant change
· Employers do not have to offer casual conversation if there are reasonable grounds for them not to. Employers must advise employees if they will not make an offer to them and why within 21 days of making the decision. In any case, the decision must be communicated to the employee before 27 September 2021. · For employees who started with the employer before 27 March 2021, an offer must be made before 27 · Employers must make an offer for casual conversion to employee who started on or after 27 March 2021 within 21 days of the employee’s 12 month anniversary. · The employee must respond to any offer within 21 days |
| Requests | · Requests can be made now if, the employee has been employed for 12 months, they have worked a regular pattern of hours in the last 6 months, those hours can continue without significant change when made permanent, an offer for casual conversion has not been made in the last 6 months or the employer has told the employee they will not be offered casual conversion on reasonable grounds in the last 6 months
· Request must be made at least 21 days after the employee’s 12 month anniversary · Employers must respond to any requests within 21 days. If the employer responds they must do on reasonable grounds and in writing. |
· Requests can be made after 28 September 2021 if, the employee has been employed for 12 months, they have worked a regular pattern of hours in the last 6 months, those hours can continue without significant change when made permanent, an offer for casual conversion has not been made in the last 6 months or the employer has told the employee they will not be offered casual conversion on reasonable grounds in the last 6 months
· Request must be made at least 21 days after the employee’s 12 month anniversary · Employers must respond to any requests within 21 days. If the employer responds they must do on reasonable grounds and in writing. |
- All casual employees must now be given a Casual Employment Information Sheet when commencing employment. It is available here.
Employers need to review their casual workforce immediately and ensure compliance with the new provisions regarding casual employees. Contact us if you require assistance in dealing with the new provisions regarding casual employment.
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