On 26 March 2021, sections of the Fair Work Act relating to the rights of casual employees were amended. These amendments will impose several new obligations on employers in respect of casual employees, including the obligation to make a casual conversion offer.
Casual Employment Information Statement
As set out in these amendments, employers are now required to give every new casual employee a Casual Employment Information Statement (CEIS) before, or as soon as practicable after, an employee starts employment as a casual employee. The CEIS provides casual employees with information on casual employment, and how offers and requests for casual conversion can be made in line with the relevant provisions of the Act. The CEIS also provides information on how casual employees can seek assistance in resolving disputes related to casual conversion.
By 27 September 2021 employers (of more than 15 employees) must provide any existing casuals employed before 27 March 2021 with a copy of the Casual Employment Information Statement (CEIS).
These amendments also set out the requirement of small business employers (of less than 15 employees) to give their existing casual employees (employed before 27 March 2021) a copy of the CEIS as soon as possible after 27 March 2021.
Offering Casual Conversion
The amendments to the Act set out the requirement of employers to assess whether their casual employees are eligible to convert to permanent employment. Within 21 days of conducting that assessment, the employer must (in writing) make an offer to the employee of permanent employment or explain why such an offer cannot be made. Employers must make a casual conversion before 27 September 2021 or within 21 days of the employee’s 12-month anniversary (whichever is later) if the employee:
- has been employed by the employer for 12 months
- has worked a regular pattern of hours on an ongoing basis for at least the last 6 months
- could continue working these hours as a full-time or part-time employee without significant changes.
The offer needs to be for the employee to convert to:
- full-time employment, if the employee’s hours worked for at least the last 6 months have been the same as full-time hours (approximately 38 hours per week), or
- part-time employment (consistent with the employee’s regular pattern of hours worked for at least the last 6 months), if the employee’s hours worked for at least the last 6 months have been less than full-time hours (less than 38 hours per week).
If an employee fails to respond to an offer to convert their casual employment to permanent employment, this will be deemed as the employee declining the offer.
Although businesses are mandated to offer casual employees’ permanent employment, casual employees can also elect to become permanent provided they meet the criteria for casual conversion as mentioned above. However, if any of the following has occurred in the previous 6 months, the employee will not be eligible to elect to obtain permanent employment:
- Refusing an offer by the employer to be permanent
- The employer has told them in writing that they cannot do so due to having reasonable ground for not doing so (see below for what amounts to a reasonable ground)
- The employer has refused a prior request due to reasonable grounds (see below for more information)
Employer Refusal
An employer can only refuse to make an offer of permanent employment to an employee who is eligible for casual conversion if the employer has ‘reasonable grounds’.
Reasonable grounds for not making an offer of permanent employment include:
- in the next 12 months, the employee’s position won’t exist;
- the hours the employee is required to work will be significantly reduced;
- there will be a significant change to the days/times the employee is required to work which cannot be accommodated by the days/time the employee is available to work, or
- making the offer would not comply with a recruitment or selection process required by federal or state legislation.
Disagreements
The CEIS also outlines that disagreements relating to casual conversion should be attempted to be resolved directly between the employee and the employer in the first instance. Where an employee is covered by an award, enterprise agreement or employment contract which sets out a process for resolving disputes in relation to the National Employment Standards, these processes will need to be followed.
Employees may seek assistance from the Fair Work Ombudsman and the Fair Work Commission. Alternatively, employees can bring a small claims proceeding in the Federal Circuit Court in connection to a dispute related to their rights to casual conversion.
