A fair go for casual employees

The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021 (Bill) was introduced into Parliament on 9 December 2020 and was passed by both houses on 22 March 2021. 

In its original form, the Bill sought to amend the Fair Work Act 2009 (Fair Work Act) and related legislation to assist Australia’s recovery from COVID-19 by:

  • providing certainty to businesses and employees about casual employment; 
  • giving regular casual employees a statutory pathway to ongoing employment by including a casual conversion entitlement in the National Employment Standards (NES) of the Fair Work Act; 
  • extending two temporary JobKeeper flexibilities to businesses, in identified industries significantly impacted by the pandemic; 
  • giving employers confidence to offer part-time employment and additional hours to employees, promoting flexibility and efficiency;
  • streamlining and improving the enterprise agreement making and approval process to encourage participation in collective bargaining;
  • ensuring industrial instruments do not transfer where an employee transfers between associated entities at the employee’s initiative;
  • providing greater certainty for investors, employers and employees by allowing the nominal life of greenfields agreements made in relation to the construction of a major project to be extended; 
  • strengthening the Fair Work Act compliance and enforcement framework to address wage underpayments, ensure businesses have the confidence to hire and ensure employees receive their correct entitlements; and
  • introducing measures to support more efficient Fair Work Commission (FWC) processes.

However, only those amendments relating to casual employment have been passed.

Table of Contents

Casual Employment Information Statement

The Casual Employment Information Statement should be given to existing casual employees as soon as possible.  In the case of new employees, this must be given by the employer before or as soon as possible after a person starts employment as a casual employee.  The Casual Employment Information Statement is published by the Fair Work Ombudsman.

Casual employees defined

A definition of a casual employee has now been legislated at s.15A of the Fair Work Act which focuses on the nature and characteristics of the engagement at the beginning of employment.  In summary a person will be a casual employee if:

(a) an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and

(b) the person accepts the offer on that basis; and

(c) the person is an employee as a result of that acceptance.

In determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:

(a) whether the employer can elect to offer work and whether the person can elect to accept or reject work;

(b) whether the person will work as required according to the needs of the employer;

(c) whether the employment is described as casual employment;

(d) whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

A regular pattern of hours does not, of itself, indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.  Further, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.

Rights of casual employees to conversion to full or part time employment

There is now a requirement upon employers (except small business employers i.e. those with less than 15 employees) to offer conversion from casual to part time or full time employment to a casual employee:

  • who has worked for an employer for at least 12 months; and
  • has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee or a part-time employee (as the case may be),

unless there are reasonable grounds not to make the offer and the reasonable grounds are based on facts that are known, or reasonably foreseeable, at the time of deciding not to make the offer.

There are also specific requirements for offer and acceptance of casual conversion.

Casual employees of small business employers who meet the criteria may themselves request conversion in accordance with a prescribed procedure at any time.  For other businesses the request can be made after the employer has decided not to offer conversion.  Such requests by employees for conversion must not be refused by the employer unless:

(a) the employer has consulted the employee; and

(b) there are reasonable grounds to refuse the request; and

(c) the reasonable grounds are based on facts that are known, or reasonably foreseeable, at the time of refusing the request.

Paid casual employee loading can be offset against entitlements

If a casual employee is entitled to relevant entitlements of a part or full time employee (paid annual leave, paid personal/carer’s leave, paid compassionate leave, payment for absence on a public holiday, payment in lieu of notice of termination, redundancy pay) which have not been paid, but the employee has been paid casual loading instead, a court can reduce the amount payable by an employer by an amount equal to the casual loading that has been paid.

Contact our employment lawyers for assistance in relation to the above. Our commercial lawyersbusiness lawyers, and disputes lawyers provide expertise in corporate and commercial advisory services as well as litigation and dispute resolution.  

HEATHFIELD GROSVENOR

Level 21, 133 Castlereagh Street

Sydney NSW 2000

Australia

T: +61 2 8005 7388

E: contact@hglaw.com.au

www.hglaw.com.au

The information provided in this article is provided by way of general information only. It does not constitute legal advice, and should not be relied upon as such. Specific independent legal advice should be obtained before deciding to act, or not to act, upon the views expressed or information contained in this article.

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