Changes to casual employment

We have provided some important information to understand when employing casual employees.

Casual employment information statement

There is a requirement to provide a Casual Employment Information Statement to all employees.

What is the definition of a “Casual Employee”

The definition is “a person is a casual employee if they accept a job offer from an employer knowing that there is no firm advance commitment to ongoing work with an agreed pattern of work.”

No firm advance commitment 

It’s important for employers to be wary of four key factors that may impact the interpretation of “no firm advance commitment”. 

Employers have made no firm advance commitment if:

• It's the employers choice to offer work and it’s the casual employees choice whether to work or not, 
• Employers only offer work to casual employees when there is a need,
• Employers describe the employees engagement as casual, and
• Casual employees are paid a loading or a specific pay rate of casual employees.

Employer requirements under the act

It is a requirement under the new Act that you must make an offer to your casual employee if:

• They’ve been employed by you for at least 12 months,
• They’ve worked a regular pattern of hours for the last 6 months on an ongoing basis, and
• Their regular hours could continue as a permanent employee without significant changes.

The offer needs to be made in writing or within 21 days after their 12-month anniversary, whichever is later.

You can choose not to offer, if:

• There are reasonable grounds for them not to, or
• They are not eligible.

The Amendment Act and the new entitlement details can be read in full under the National Employment Standards (NES) found here: https://www.fairwork.gov.au/employee-entitlements/national-employment-standards

If an employee meets the above criteria, they can make a request to become a permanent employee at any time. This is subject to further considerations regarding eligibility.

Small businesses and employee requests

If you are a small business (fewer than 15 employees), you are not required to offer your casual employees the casual conversion. However, your employee can make a request if they meet the following requirements:

• They’ve been employed for at least 12 months,
• They’ve worked regular pattern of hours in the last 6 months on an ongoing basis,
• Their regular hours can be continued as a permanent employee without significant changes,
• They haven’t refused a previous offer made by you in the last 6 months,
• They have not been issued a written letter stating that they will not be offered casual conversion based on reasonable grounds, and
• A request to become a permanent employee has been refused based on reasonable grounds in the last 6 months.

The request needs to be received in writing within 21 days after their 12-month anniversary. You will be required to respond within 21 days; this must be in writing.

Disputes: taking legal action

An employee may choose to take legal action if they dispute your claims for not converting. This is actioned through the Federal Circuit Court.

Further information:

For more information on the taking legal action, see the following link:

https://www.fairwork.gov.au/workplace-problems/fixing-a-workplace-problem/resolving-disputes-with-our-help/legal-action-in-the-small-claims-court

How can Brentnalls SA help?

If you would like to discuss this further, please contact Brentnalls SA.

Disclaimer

The information provided in this information sheet does not constitute advice. The information is of a general nature only and does not take into account your individual financial situation. It should not be used, relied upon, or treated as a substitute for specific professional advice. We recommend that you contact Brentnalls SA before making any decision to discuss your particular requirements or circumstances.