National Employment Standard Casual Amendments

/in /by

The purpose of this article is to update you on a recent amendment to the National Employment Standards under the Fair Work Act 2000 (Cth) related to casual employment. This amendment came into effect from 27 March 2021.

What does this amendment involve?

Inserting a new definition of casual employment into the Act

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 are either:

1. become a permanent employee through:

a. casual conversion, or

b. are offered and accept the offer of full-time or part-time employment, or

2. stop being employed by the employer.

This legislative definition provides certainty around the issue of casual employment, which has been increasingly challenged in recent decisions of the Fair Work Commission and the Courts.

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.

The offer for conversion must be provided to employees in writing to the employee within 21 days of the casual employee’s 12-month work anniversary.

Employers are not required to make an offer where there are ‘reasonable business grounds’ not to. Reasonable business grounds are defined in the Bill and include a number of factors including, for example, where the employee’s positions will no longer be required or there will be a significant change to the hours or days the employee is engaged.

If an employer considers there are reasonable business grounds not to make an offer of conversion, these details must be specified in writing and provided to the employee within 21 days.

The Bill makes clear that, where an employee refuses an offer to convert, they lose the right to convert for the next 6 months

Equally, where an employer has determined that there a reasonable business grounds to not make an offer of casual conversion and notifies the employee in accordance with the provisions of the Bill, then the employees also cease to hold a right to request conversion for the next 6 months

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.

Requirement to issue CEIS

The Amendment also requires employers to issue all new casual employees with the Casual Employment Information Statement (CEIS) upon commencement of their employment.

The CEIS is attached to this email. The CEIS operates similarly to the Fair Work Information Statement (FWIS), in that is must be included in a new employee’s induction material.

Providing the Statement to existing employees

Existing casual employees will also need to be provided with the attached statement. This must occur as soon as practicable for small business employers. For businesses that are not ‘small business employers’, the statement must be given as soon as practicable after 27 September 2021.

If you require any assistance with the practical implementation of this new amendment or would like to ask any questions such as the definition of ‘reasonable business grounds’ or ‘small business employer’, please don’t hesitate to contact us directly.

Sincerely,

Patrick Crosswell