Recent changes that apply to casual employees
On 26 March 2021, the Fair Work Act 2009 (FW Act) was amended to change workplace rights and obligations for casual employees. The changes were made by the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Amendment Act). These changes came into effect on 27 March 2021.
The Amendment Act introduces:
a definition of casual employment;
a Casual Employment Information Statement (CEIS);
the ability to offset any casual loading already paid by an employer against any retrospective employee claim for entitlements; and
that employers who have more than 15 employees must now offer a casual employee conversion to a permanent full-time or part-time role (depending on hours worked). Employees who work in small businesses (15 or less employees) can request in writing after 12 months of employment to convert to a permanent full-time or part-time role (depending on hours worked).
New definition of a casual employee
Section 15A of the FW Act defines a casual employee as a person who has been made an offer on the basis that an employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for that person. When the person accepts the offer on this basis, the person becomes a casual employee.
What obligation do employers have
The CEIS must be given to every new casual employee as soon as they commence employment.
Small businesses with existing casual staff must give the CEIS as soon as possible. Other businesses must provide the CEIS to their existing casual staff as soon as possible after 27 September 2021.
For businesses with 15 or more employees, an offer of permanent employment must be made in writing if there are casual employees who have worked a regular pattern of hours for the last 6 months on an ongoing basis and they have been employed for at least 12 months.
Employers are not obliged to make an offer if there are ‘reasonable business grounds’ not to make an offer.
What this means for employers
These changes are positive for employers who now have more certainty around the engagement of casual employees in workplaces, especially as any offer of casual employment will be assessed on the offer that was made at the time rather than any future conduct that otherwise occurs between an employer and employee. For example, a regular pattern of work performed by a casual employee by itself no longer means an employer has committed to provide ongoing work.
A casual employee will no longer be able to ‘double-dip’ if they have been misclassified as a casual, as any casual loading already paid must be deducted from any entitlements that the Court finds that may be due to them.
Employers should take the opportunity to review their casual employment contracts and ensure that they have the appropriate clauses to reflect the recent legislative changes.
We can assist by providing advice on what these legislative changes mean for your casual workforce and how to make and respond to casual conversion offers.
For further information please contact:
Deepa Travers
Lawyer
T 03 5225 5233
E dtravers@ha.legal
Jim Rutherford
Principal Lawyer
T + 03 5226 8579
E: jrutherford@ha.legal
Sophie Ware
Associate
T 03 5226 8577
E sware@ha.legal
