Following the commencement of changes the Fair Work Act earlier this year dealing with casual conversion, there are a number of actions that employers were required to undertake by Monday, 27 September 2021.
Casual employees and conversion
Earlier this year, we wrote about the changes to the casual employment framework that were being introduced over the course of this year. These changes include:
- the introduction of a definition of 'casual employee' to the Fair Work Act 2009;
- the requirement that employers give all new casual employees a Casual Employment Information Statement ('CEIS') before, or as soon as practicable after, they begin the casual employment; and
- the introduction of rights to 'casual conversion'.
Changes that took effect on 27 September
Casual Employee Information Statement
Employers who are not a small business (i.e. who have 15 or more employees) must give existing casual employees a copy of the CEIS as soon as possible after 27 September 2021 (if they have not already done so). This can be done in person, by post, or if the employee agrees, by emailing a copy or a sharing a link to the CEIS on the Fair Work Ombudsman's website.
The most significant change for employers is the introduction of rights to 'casual conversion'. In short, employers are required to offer casual employees the option of converting to permanent employment (either part-time or full-time depending on the casual employee's pattern of work) if the employee meets the following eligibility criteria:
- the employee has been employed by the employer for a period of 12 months; and
- during at least the last 6 months of that period, the employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time or part-time employee.
However, an employer is not required to offer casual conversion if there are reasonable ground to not make the offer (based on facts that are known or reasonably foreseeable at the time of making the decision). Reasonable grounds may include: that the employee's position will cease to exist in the ensuing 12 months; or that their hours of work will be significantly reduced in that period.
By 27 September 2021, all employers (other than small employers, who have fewer than 15 employees) had to assess whether any existing casual employees (employed before 27 March 2021) are eligible to be offered to convert to permanent employment, and whether there are reasonable grounds not to make the offer.
Where this assessment identifies casual employees that are eligible for conversion to permanent employment (irrespective of whether or not there are reasonable grounds not to make the offer), employers need to:
- (if offering casual conversion) make a written offer to convert their casual employment to permanent employment; or
- (if there are reasonable grounds not to make an offer) write to the casual employee with an explanation as to why the employer will not be making an offer of casual conversion (including detailing the reasons).
Where a casual employee wishes to accept an offer to convert to permanent employment, they must respond in writing within 21 days after getting the offer. If they fail to respond, employers can assume that they have declined the offer.
By 27 September 2021, employers had to:
- be prepared to provide their existing casual employees with a copy of the CEIS (if they have not already done so);
- have made an assessment as to whether any existing casual employees are eligible to be offered to convert to permanent employment;
- have determined whether the offer is to be made, or whether there are reasonable grounds not to make the offer; and
- communicate (in writing) any decision to refuse an offer of casual conversion to any relevant casual employees and include an explanation as to the reasonable grounds underpinning that decision.