Casual Employees - Changes

There has been a spotlight on casual employment over the past couple of years thanks to the Workpac Pty Ltd v Rossato (2020) case with its decision causing confusion and angst for many employers.  In response, new legislation was passed by the Federal Government and it quickly came into effect from 27 March 2021.  Key points for all employers are as follows:

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CASUAL EMPLOYEE – DEFINED
From 27 March 2021, there is a new definition of a casual employee.  As per the Fair Work Act, a person is a casual employee if:

• they are offered a job
• the offer does not include a firm advance commitment that will continue indefinitely with an agreed pattern of work
• they accept the offer knowing that there is no firm advance commitment and become an employee.

FIRM ADVANCE COMMITMENT
Understanding what firm advance commitment means under the Fair Work Act is really important when it comes to defining an employee as casual.  You need to consider whether:

• the employer can choose to offer the employee hours of work and it’s the employee’s choice to work or not
• the employee will be offered hours of work when the business needs them to work
• the employment is described as casual
• the employee is paid a casual loading (a higher pay rate for being a casual employee), or a specific pay rate for casual employees.
  
  

Once employed as a casual, the employee will continue to be a casual employee until:

• They become a permanent employee through:
  • casual conversion, or
  • you offer and they accept the offer of full time or part time employment, or
• They stop being employed by the employer.

CASUAL CONVERSION
So we now have a definition for a causal employee and the criteria you need to meet , casual conversion is the next area that has some changes.  Under the revised National Employment Standards, casual employees are entitled to access a pathway to become a permanent employee.  Let’s take a look at who is obligated to do what:

For businesses with 15 or more employees, you the employer now need to make an offer to your casual employee/s to become a permanent employee if:

• you’ve employed them for a least 12 months
• they’ve worked a regular pattern of hours for the last 6 months on an ongoing basis, and
• their regular hours could continue as a permanent employee without significant changes.  

​You must make this offer in writing before 27 September 2021 or within 21 days of your employees 12 month anniversary – whichever is later.  

For business with less than 15 employees, you do not have to offer casual conversion however employees can make the request if they meet the conditions outlined above.  Within small businesses, your employees can make the request as of now.

DISAGREEMENT
It is a fact of life that humans don’t always agree and when it comes to understanding the casual conversion criteria or the nature of ongoing and longer-term plans for your business and how that impacts your organisational structure, a dispute may arise.  Naturally, HR Staff n’ Stuff will be here to support and advise you on these matters however industries and businesses covered by an award, agreement or employment contract with a process for dealing with disputes relating to the National Employment Standards need to follow the outlined process.

If you don’t have the above avenue to follow in the first instance, you may find that an employee can refer the matter to the Fair Work Commission.  So please ensure you understand the criteria and adhere to all due process – or call us – if you want to minimise the risk of an external authority having the final say.

CASUAL EMPLOYMENT INFORMATION STATEMENT
In addition to the above changes, each casual employee must be provided with the Casual Employment Information Statement (the CEIS) before, or as soon as possible after, they start the new job.  

Small business employers (fewer than 15 employees) must provide the CEIS to existing casual employees as soon as possible post 27 March 2021.  

Business with 15 or more employees must provide the CEIS to existing casual employees as soon as possible after 27 September 2021. 

To download a copy of the CEIS, please click here.

FAIR WORK INFORMATION STATEMENT
While you are in the mood for downloading, click here for the Fair Work Information Statement that has been updated to include the latest 11 minimum employment entitlements which also must be provided to all new employees.

NEED MORE HELP
Employment laws and obligations are organic and will constantly evolve as cases are tested in the courts and or inconsistencies in current legislation becomes apparent.  If you need support applying the latest changes, please contact the HR Staff n’ Stuff team now – we are here to help when you need us!

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