ARTICLE
17 April 2024

Keeping it casual - The ever-changing world of casual employment

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Preston Law

Contributor

Preston Law
New amendments proposed to Fair Work Act in relation to casual employment.
Australia Employment and HR
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Casual employment is vital for businesses, however, more often than not employees are not strictly casual.

As a result, in 2021 we saw the introduction of significant changes to the Fair Work Act 2009 (Cth) (FW Act) and Casual Employment. This included the inclusion of a definition of "casual employment" and minimum rights regarding the conversion from casual to permanent employment.

These provisions have not been adequate and as a result, new amendments are proposed and will come into effect on 26 August 2024.

Changes to Casual Employment

The definition of Casual Employment will now adopt an objective assessment and broaden the relevant factors that must be taken into consideration in determining whether an employee is casual. This will include the following:

  • a mutual understanding or expectation between the employer and employee;
  • the employee's ability to accept or reject work;
  • the future availability of continuing work;
  • the presence of part-time or full-time employees performing similar duties; and
  • the existence of a regular work pattern.

When determining if one or more of these factors apply, employers must be genuine in assessing the true nature of the employment.  Therefore, even if a casual has a regular work pattern, there may not be guaranteed work in the future.

Casual Conversion

In some circumstances, the National Employment Standards give a casual employee the right to become a full-time or part-time employee. This is known as casual conversion. An employer doesn't have to offer an employee casual conversion in reasonable circumstances. Currently, this must be considered every 12 months, however, the new amendments have reduced this time frame to 6 months for larger businesses, and 12 months for small business employees.

Additionally, employees cannot exercise this right within 6 months of a previous request being rejected. Instead of following the previous process, employees may now simply notify their employer that they no longer consider themselves casual employees under the FW Act definition, invoking the new "employee choice" pathway. The Fair Work Commission holds the authority to arbitrate disputes regarding employers' refusals to offer conversion.

Existing casual employees at the date of amendments have the right to request casual conversion until they can access the new employee choice pathway, which will be available from 31 December 2024 (or 1 July 2025 for casual employees of small businesses).

Casual Employment Information Statement

Employers are still required to provide the Casual Employment Information Statement to casual employees at the commencement of their employment, as well as at 6 and 12 months, and annually thereafter. However, small businesses only need to provide this statement after the first 12 months.

Give us a Call

With the ever-changing law, it is important to ensure that you are up to date and complying with your obligations as an employer of casuals as protections against the intentional misuse of casual employment remain in place. If you are unsure of your obligations, speak to an employment lawyer in our office for obligation-free advice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

ARTICLE
17 April 2024

Keeping it casual - The ever-changing world of casual employment

Australia Employment and HR

Contributor

Preston Law
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