Do you employ casual workers?

26 · Mar · 2021

On 26 March 2021, the Fair Work Act 2009 (the Act) was amended to change the rights for casual employees, and those businesses who employ them.

On 26 March 2021, the Fair Work Act 2009 (the Act) was amended to change the rights and obligation for casual employees, and those businesses who employ them. The changes came into effect the very next day, so employers should be well aware of how such changes could impact them now and into the future.
Of note for employers, the changes have introduced a requirement for the provision of a Casual Employment Information Statement, as well as a pathway for casual employees to move to full-time or part-time (permanent) employment.

New Definition of Casual Employment

The amendment to the Act has also introduced a long awaited update to the definition of casual employment- which says that ‘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’.

This question is assessed on the basis of when the offer of employment is made, and not on the basis of any subsequent conduct of the parties. In determining whether, as part of the initial offer of employment, the employer has made no firm advance commitment to continuing and indefinite work, consideration of only the following conditions is to be had:

  1. Whether the employer can elect to offer work and whether the person can elect to accept or reject work;
  2. Whether the person will work as required according to the needs of the employer;
  3. Whether the employment is described as casual employment; and
  4. 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.

Don’t forget the Casual Employee Information Statement

From 27 March 2021, employers of new casual employees are required to give their new casuals a Casual Employment Information Statement (the CEIS) before, or as soon as possible after they start their new job. Importantly, small business employers (an employer with fewer than 15 employees at a particular time) will need to give their existing causal employees a copy of the CEIS as soon as practicable. All other employers must give their existing casual employees a copy of the CEIS after 27 September 2021.
A copy of the CEIS can be located on the Fair Work Ombudsman Site, or by contacting us, here at Vitalis Legal.

The New Pathway to becoming a Permanent Employee

The changes to the Act now provide a clear cut entitlement for casuals, giving those employees a pathway to become a full-time or part-time employee. This pathway has also been described as ‘casual conversion’.

An employer (other than a small business employer- as described above) now has to offer their casual employee to convert to full-time or part-time when the employee:

  1. Has worked for their employer for 12 months;
  2. Has a regular work pattern of hours for at least the last 6 of those months on an ongoing basis; and
  3. Could continue working those hours as a permanent employee without significant changes.

 The offer must be in writing, and must be delivered to the employee within 21 days of the end of the 12 month period.

Some exceptions apply, including for small business employers, and if the employer has ‘reasonable grounds’ not to make an offer to a casual employee. Reasonable grounds for deciding not to make an offer, may include:

  1. The employee’s position will cease to exist in the period of 12 months after the time of deciding not to make the offer;
  2. The hours of work which the employee is required to perform will be significantly reduced in that period;
  3. There will be a significant change in either or both of the following in that period:
    1. The days on which the employee’s hours of work are required to be performed; or
    2. The times at which the employee’s hours of work are required to be performed;

           which cannot be accommodated within the days or times the employee
           is available to work during that period; and

  1. Making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a state or territory.

Whilst the amendments to the Act do provide some much needed certainty for employers and employees alike, it will be interesting to see how these changes are adhered to and ultimately resolved, should matters end up before the Courts.

If you would like any further information, or wish to discuss how these changes may impact your business or ongoing employment, please do not hesitate to contact us at Vitalis Legal.

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