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As a result of the commencement (from 27 March 2021), of the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (FW Amendment Act) there have been a number of significant changes made to casual employment.
The FW Amendment Act:-
- inserts a definition of casual employment into the Fair Work Act 2009;
- provides a pathway for a casual employee to be re – classified as either a full – time or a part – time employee (after satisfying various criteria); and
- inserts provisions that require an employer to provide both existing and prospective casual employees with the Casual Employment Information Statement (Casual Info Statement).
The Fair Work Act 2009 (FW Act) has been amended (by the FW Amending Act) to include a definition of a casual employee.
Under the 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 continuing and indefinite work according to an agreed pattern of work.
The FW Act provides that:-
“…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:-
- whether the employer can elect to offer work and whether the person can elect to accept or reject work;
- whether the person will work as required according to the needs of the employer;
- whether the employment is described as casual employment;
- 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 an award or enterprise agreement.
Once employed as a casual employee, a casual employee will continue to be a casual employee until the casual employee:-
- becomes either a full - time employee or a part – time employee through:-
- casual conversion, or
- accepting an offer of either full – time or part – time employment, or
- ceases to be employed by the employer.
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.
The FW Amendment Act adds a new entitlement to the National Employment Standards (NES) giving casual employees an opportunity (after satisfying various criteria) to become either a full – time or part – time employee.
An employer (that employs “fewer than fifteen”  employees) has to offer their casual employee the opportunity to convert to full – time or part – time when the casual employee:-
- has worked for their employer for twelve (12) months; and
- has worked a regular pattern of hours for at least the last six (6) of those months on an ongoing basis; and
- could continue working those hours as a permanent employee without significant changes.
An exception applies if an employer has “reasonable grounds” not to make an offer to a casual employee for casual conversion.
Casual employees have a right to request to convert to full – time or part – time employment in some circumstances. This applies:-
- for casual employees working for an employer that employs fewer than fifteen (15) employees - at any time once they meet the requirements; or
- for other casual employees - after their employer has decided not to make an offer for casual conversion.
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.
The Clerks - Private Sector Award 2020, the Manufacturing and Associated Industries and Occupations Award 2020 and the Plumbing and Fire Sprinklers Award 2020 each contain their own casual conversion provisions. The Fair Work Commission has announced that they will commence a review of award casual conversion clauses to ensure that they are consistent with the NES.
Employers have to give every new casual employee a Casual Info Statement before, or as soon as possible after, they start their new job. A copy of the Casual Info Statement can be accessed here.
An employer that employs “fewer than fifteen” (15) employees needs to give their existing casual employees a copy of the Casual Info Statement as soon as possible after 27 March 2021.
Other employers have to give their existing casual employees a copy of the Casual Info Statement as soon as possible after 27 September 2021.
Further information and assistance can be obtained from Master Plumbers.
For those members that have any questions please contact Phil Eberhard, Senior Workplace Relations Adviser, Master Plumbers, on [email protected] or 0425 790 722.