The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 was recently passed by Parliament as a slimmed down version of the Government’s proposed changes to the Fair Work Act 2009. The Act relates to casual employment which seeks to provide certainty about what is a casual.
The Act changes some of the key findings we have previously discussed in the Skene and Rossato High Court decisions. Namely, where those findings relied upon the characteristics of casual employment, this Act points only to the offer and acceptance of the employment. The list of factors that determine what is a ‘firm advance commitment’ is now an exhaustive one [see below], rather than a non exhaustive list as determined in the Skene and Rossato decisions.
Summary of changes
Statutory definition of casual
An employee will be classified as a casual if an offer of employment makes no firm advance commitment of regular work and the employee accepts the offer on that basis. In determining whether the offer of employment makes no firm advance commitment of regular work regard will only be had to the following considerations:
- whether the employee can elect to accept or reject work;
- whether the employee will work as required according to the needs of the employer;
- whether the employment is described as casual employment; and
- whether the employee will receive a casual loading.
The definition also makes it clear that a regular pattern of hours does not in itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern.
The definition of long term casual has been repealed and replaced with regular casual employee. The definition captures that the employee is a casual and has been employed by the employer on a regular and systematic basis.
Obligation on employers to offer conversion to ongoing employment after 12 months
Where a casual employee has being employed for 12 months and worked a regular pattern of hours for at least the last 6 months of that period, they will be required to be offered ongoing employment by the school. This offer is made where the hours can be maintained as either full time or part time. An offer is not required if the hours cannot be sustained.
Employee can request casual conversion
Where the above considerations are met an employee can request a conversion to ongoing employment if they have not already declined an offer of conversion in the preceding 6 months and/or the employer has not already notified the employee that conversion is not possible. An employer cannot decline a request unless there are reasonable business grounds to do so. A response must be provided within 21 business days.
Where employment has been converted from casual to ongoing full-time or part-time, the period as a regular casual employee is treated as continuous service.
Loading amounts and prevention of double dipping
Where there is a successful claim that the employment type has been misclassified as casual rather than ongoing, the courts will offset payments against entitlements already paid through casual loadings. However such offsetting will only apply where the engagement is specified as being casual and the employer has stipulated that the loading is being paid to compensation for not having specific entitlements.
The court can make retrospective claims.
Casual Employment Information Statement [CEIS]
All casual employees are required to receive a copy of the Casual Employment Information Statement at least once in a 12 month period. This is now available on the Fair Work Ombudsman website. While most employers only need to provide existing casual employees with a copy of the CEIS as soon as possible after 27 September 2021 we recommend that it be done at your earliest convenience.
Disputes about conversion
If there is an Award, Agreement or Employment Contract that details how to deal with a dispute relating to a national employment standard, this process is to be applied. Where such processes do not exist, employees are encouraged to firstly approach the school using the normal grievance processes.
- Update all casual letters and re-issue to reflect the wording changes in light of the Act
- Provide casual staff with a copy of the Casual Employment Information Statement
- Review all casual staff engaged over the previous 12 months to determine if they meet the criteria for conversion to ongoing employment based on the working of regular hours for the last 6 months. Write to these employees to either offer them ongoing employment or to inform them that the school will not be offering conversion to ongoing employment because of reasonable business grounds.
- Continue to maintain accurate records of all casual employees to determine first date of engagement and regularity of work.