Australia: New rights for casuals to become permanent staff

Last Updated: 21 July 2017
Article by Charles Power and Nathan Steinkoler (formerly with Holding Redlich)

Most Read Contributor in Australia, December 2018

The Fair Work Commission (FWC), in a landmark ruling arising from its quadrennial review into all modern awards, has held that casuals who work regular hours are entitled to request a conversion to permanent status after twelve months of service. An employer may only deny an employee's request on reasonable grounds.


The FWC began by considering the historical development of casual employment in Australia. It noted that, "it is difficult to assign any consistent legal or practical criteria to the concept of casual employment." A casual employee may be legitimately engaged under a succession of fixed-term contracts, or under a single ongoing contract that is terminable without notice. Similarly, casual employment may be utilised for short-term, intermittent and irregular work, or as an alternative legal arrangement for long-term work with regular, rostered hours.

Competing claims

Bearing that in mind, the Commission considered the merits of the Australian Council of Trade Union's (ACTU) claim for a clause allowing for conversion to permanent status for so-called "permanent casuals" to be inserted into every modern award that doesn't already include one. The ACTU also applied for a variation to the small number of modern awards already containing a casual conversion clause, such that employees would be "deemed" a permanent employee after six months of service unless they opted out.

Employer groups including the Ai Group and the Australian Council of Commerce and Industry (ACCI) opposed the ACTU's claim. They further claimed that the burden placed on employers to notify employees of their rights to request conversion was disproportionately onerous to the benefits it produced, and should be removed from modern awards containing a casual conversion clause.


The FWC had to determine whether the proposed casual conversion clause was necessary to achieve the modern awards objective: to ensure that "modern awards, as well as the National Employment Standards (NES), provide a fair and relevant minimum safety net".

In doing so, the FWC accepted the general thrust of the ACTU's case, drawing a number of conclusions favourable to the Union peak body. These included:

  • Casual employees, who are disproportionately young, female and award-reliant, generally suffer a range of detriments unique to casual work;
  • Casuals often lack "any real prospects of career progression" because employers are less likely to offer training and development opportunities to casuals, and because many employers prefer a workforce with high rates of casuals. While this may not be a problem for many casuals, such as students seeking an income while studying for a career in an unrelated field, many workers during their prime working years accepted casual employment as it was the only work on offer, only to become "locked into" it over time;
  • Many casual employees suffer worse health outcomes as an incidence of their casual employment. This was in large part due to the stress of "insecure work" as well as the greater tendency of casual employees to work while sick, because of their inability to access personal leave under the NES. Furthermore, many casuals are put at greater risk of workplace injury due to a general lack of information about workplace rights, exclusion from consultation processes and lower levels of instruction and training;
  • Many long term casuals experienced difficulty securing housing finance and other loans; and
  • While the casual loading "notionally" compensates for the loss of NES entitlements, it does not take into account these other unique detriments.

For these reasons the FWC accepted there exist a "not negligible" number of casuals, importantly across all industry sectors, who have worked for their employers for a long period of time, have a regular working pattern, and who are dissatisfied with their casual status. The FWC held that denying these workers any mechanism to transition to full or part time employment, as the case may be, would "undermine the fairness and relevance of the safety net".

Crafting the clause

In crafting its model clause the FWC did pay due regard to the concerns of employer groups. The FWC accepted there were a number of industries where the ACTU's proposal of a six month qualifying period would result in seasonal workers or workers used to meet a temporary surge in demand being granted the opportunity to request conversion. The FWC adopted a twelve month qualifying period.

While the FWC accepted it was necessary that casual employees be informed of their rights under the clause, it did consider employer groups' submissions that notification of employees was a burdensome process. Ultimately, the FWC held that the only onerous aspect of employee notification was determining which employees may be eligible for conversion. The FWC therefore adopted a term requiring employers to notify any casual of the existence of the clause within the first 12 months of their engagement.

The FWC also accepted employer groups' submissions that there were reasonable grounds upon which an employer may not wish to convert a casual to permanent status. In doing so, the FWC adopted a term that allows employers to refuse an employee's request on reasonable grounds. A refusal must come after consultation with the employee and must be based on facts known or reasonably foreseeable to the employer at the time. The employer must communicate its reasons for refusal in writing. Where these are not accepted, the employee is to have resort to the award's dispute resolution procedure.

The FWC dismissed the ACTU's second claim, that casual employees already covered by a casual conversion clause in an award should be deemed a permanent employee after six months. It held it was not necessary or appropriate to burden casual employees who preferred this status with opting out in order to convert causals desiring permanent status. The FWC also dismissed the employer groups' claim to abolish the notification requirement in these awards. It did however invite submissions on whether the clauses in these awards should be harmonised with the new model clause.

What does this mean for employers?

The majority of employers who employ casual staff under an award will soon be covered by the model clause. Once effective, employers affected must provide a copy of the clause to each of their casual employees within the first twelve months of their engagement. If an employee makes a written request for conversion then the employer must consult with them and, if refusing the request on reasonable grounds, provide the employee with written reasons for their decision within 21 days of the request being made. The ability of some workers to refer the matter to the FWC under the dispute resolution clause in the applicable award means there will soon be a body of law surrounding what constitutes reasonable grounds of refusal.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions