Changes To The Laws Governing
Casual Employment
Please note. The “casual conversion” portion of this law change only impacts employers who are not small business employers. This newsletter is being sent to you so that you are aware of the changes just in case you get asked a question by any of your casual employees.
Please also note that we, at Expert Bookkeeping and Accounting Services, are not HR specialists and so this newsletter is purely for advisement of, and information about, the changes in law. If you require information relating specifically to your business, then we highly recommend that you contact someone who specialises in employment law.
Background
On Friday 26 March 2021, the 2021The Fair Work Act 2009 (FW Act) was amended to change workplace rights and obligations for casual employees.
The changes have an impact (to a greater or lesser extent) on ALL employers.
The Amendment Act introduces a:
• Casual Employment Information Statement (the CEIS) requirement
• An amended definition of casual employment/casual employee
• Pathway for casual employees to move to full-time or part-time (permanent) employment (does not impact Small Business Employers).
New casual employees also need to be given the Fair Work Information Statement. Visit www.fairwork.gov.au/fwis for more information.
Who is a Small Business Employer
A small business employer is an employer who employs fewer than 15 employees (regardless of employment status, ie, casual, permanent full-time or permanent part-time).
Casual Employment Information Statement
ALL Employers have to give every new casual employee a Casual Employment Information Statement (the CEIS) before, or as soon as possible after, they start their new job.
When you click on the Casual Employment Information Statement link it will take you the Fair Work website. At the bottom of this page you will be able to download the CEIS in either pdf or word format.
Small business employers also need to give their existing casual employees a copy of the CEIS as soon as possible after 27 March 2021.
Other employers (ie not small business employers) have to give their existing casual employees a copy of the CEIS as soon as possible after 27 September 2021.
Employers can provide a copy of the CEIS to their casual employees, either:
• in person, and/or
• by mail, and/or
• if the employee agrees, by emailing a copy of the CEIS or a link to the CEIS.
Definition of casual employment/casual employee
Under the new Fair Work Act definition, a person is a casual employee if they:
1. Accept a job offer from you knowing that there is no firm commitment regarding fixed hours or ongoing regular work with an agreed pattern of work.
2. In other words, they are not permanent part-time or permanent full-time.
3. A casual employee does not receive all the same entitlements as permanent employees (full-time or part-time), for example, sick leave, annual leave, long service leave, redundancy/retrenchment protections, etc.
An employee will continue to be employed as a casual until they become a permanent employee through a casual conversion, or as a result of an offer of permanent full-time or permanent part-time employment.
Becoming a Permanent Employee via the Casual Conversion route (does not impact Small Business Employers)
The Amendment Act adds a new entitlement to the National Employment Standards (NES) giving casual employees a pathway to become a permanent employee.
This is known as 'casual conversion'.
An employer (other than a small business employer) has to offer their casual employee an opportunity to convert to permanent full-time or permanent part-time when the employee:
1. has worked for their employer for 12 months; and
2. has worked a regular 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.
Some exceptions apply, including:
1. small business employers, or
2. if an employer has ‘reasonable grounds’ not to make an offer to a casual employee for casual conversion.
Reasonable grounds for not making an offer or refusing a request
If an employer decides to not make an offer, or refuses to accept a request, for a casual employee to convert to permanent employment on ‘reasonable grounds’, the reasonable grounds they rely on have to be based on facts that are known or are reasonably foreseeable.
Reasonable grounds for deciding not to make an offer can include that, in the next 12 months:
• the employee’s position won’t exist
• the employee’s hours of work will significantly reduce
• the employee’s days or times of work will significantly change, and that can’t be accommodated within the employee’s available days or times for work.
Reasonable grounds can also include:
• making the offer would not comply with a recruitment or selection process required by or under a Commonwealth, State or Territory law
• the employer would have to make a significant adjustment to the employee’s work hours for them to be employed full-time or part-time.
Other things to be aware of:
Making and responding to offers and requests
There are rules for how employers and employees need to make and respond to offers.
There are also rules for offering casual conversion to existing casual employees.
Taking legal action
There is a new avenue to resolve some disputes about casual conversion through the Federal Circuit Court.
Published: 28/04/2021 09h05