The Fair Work Commission (FWC) brought in changes relating to casual employment which came into effect on 27 March 2021 and must be complied with by 27 September 2021 (where your business employees more than 15 people).
While the amendments go some way towards protecting you as an employer from 'double-dipping' claims by casual employees, they also impose significant obligations on you in relation to any casual workers you may have. Among these are the requirement for employers to assess and deploy casual conversion to permanent (full-time or part-time) employment and to ensure casual employment contracts are consistent with the new law.
Top 3 priorities relating to changes to casual employee requirements:
- By 27 September 2021 and if you employee 15 or more people, you must:
- Assess casual workers employed before 27 March 2021 are eligible to convert to permanent employment.
- Make a written offer for permanent work to that worker or explain why such an offer cannot be made.
Who is classified as a casual employee?
The Fair Work Act (FWA) now includes a statutory definition of "casual employee".
Under this definition, a person is a casual worker if they accept a job offer from you and know there is no firm advance commitment to ongoing work with an agreed pattern of work – i.e. whether a person is regarded as a casual worker is assessed at the time they are offered (and accept) employment.
Once employed as a casual worker, they continue to be classified as casual until they stop being employed by the employer or they become a permanent employee either by:
- casual conversion, or
- being offered and accepting full-time or part-time employment.
The new definition has retrospective application which means it applies to casual employment offers made before, on or after the new laws came into effect on 27 March 2021.
Casual Conversion Information Statement
You now need to give every new casual employee a Casual Employment Information Statement (Statement). It is recommended this Statement be provided with the employment agreement / contract; along with the Fair Work Information Statement (Fair-Work-Information-Statement (18).pdf).
Existing casual workers must be given a copy of the Statement by no later than 27 September 2021.
Right to convert from casual to permanent employee
Under the new laws, all casual employees (including those employed before the new law came into effect or covered by an Award (or not)) may be entitled to convert to a permanent employee. This is known as 'casual conversion'.
By 27 September 2021 and where you have more than 15 employees, you must assess their pattern of work to determine whether they are eligible to receive an offer of conversion to full-time or part-time employment. Your casual worker can request permanent employment based on their pattern of work any time from 28 September 2021.
Where you employ less than 15 people, you do not have to offer casual conversion. However, the casual worker can make a request for casual conversion.
Any request by a casual worker for conversion to permanent employment is covered by the following eligibility requirements if the casual worker:
- 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; and
- could continue working those hours as a permanent employee without significant changes.
Exceptions apply if you have 'reasonable grounds' not to make a casual conversion offer to a casual worker.
Existing Casual Employees
As noted above, the new definition of casual employee under the FWA applies to all casual employees employed before the laws came into effect.
You have until 27 September 2021, to assess whether casual workers employed before 27 March 2021 are eligible to be offered permanent employment. Once assessed, you have 21 days (but before 27 September 2021) to make a written offer to the employee to convert to permanent employment or explain why such an offer cannot be made.
Reasonable grounds not to offer permanent employment
You can refuse to make an offer to a casual worker who is eligible for casual conversion if you have 'reasonable grounds' – e.g.
- in the next 12 months, the casual worker’s position won't exist;
- the hours the casual worker is required to work will be significantly reduced;
- there will be a significant change to the days/times the casual worker is required to work which cannot be accommodated by the days/time the casual worker is available to work, or
- making the offer would not comply with a recruitment or selection process required by federal or state legislation.
A casual worker can make a subsequent request for casual conversion on certain grounds.
Key Learnings – your obligations as an employer to comply with FWA
Where you employ more than 15 employees, you must meet the deadline of 27 September 2021 and:
- assess whether any existing casual workers employed before 27 March 2021 are eligible to convert to permanent employment
- make a written offer to casual workers to convert to permanent employment or explaining why such an offer cannot be made
- provide casual workers with a copy of the Casual Employment Information Statement.
It is strongly recommended you take steps now to review and update your employment agreement / contract templates to ensure they comply with the obligations set out above.
As an employer, you have a duty under the FWA to identify and assess your casual workforce and ensure you update your offers of employment to your existing casual workers (where applicable) to avoid a breach or even potential and unnecessary embarrassment.
If you are unsure of what the next step is to ensure your business complies or you need assistance to prepare documents including review of / update to your offers of employment and existing casual employment agreements/contracts for compliance; Akyra can assist you. Contact us on 07 3204 8830, for an obligation-free conversation or to discuss any queries you may have.
CONTACT US NOW to book a time to discuss your areas of potential concern and we will then provide a way forward where it might be needed.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.
Source: https://www.mondaq.com/ August 2021.
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