Changes to casual employment – industrial relation reforms

The Fair Work Act 2009 (‘FWA’) was amended on Friday 26 March 2021 to change workplace rights and obligations for casual employees.  The changes came into effect on 27 March 2021.

Following is an outline of the changes:

  1. Introduction of a Casual Employment Information Statement

Employers are required to give every new casual employee a Casual Employment Information Statement (CEIS) before, or as soon as possible after, they start their job.

Additionally, small businesses are required to give existing casual employees a copy of the CEIS as soon as possible after 27 March 2021.  Other employees are required to give their existing casual employees a copy of the CEIS as soon as possible after 27 September 2021.

A copy of the CEIS can be downloaded from:

https://www.fairwork.gov.au/employee-entitlements/national-employment-standards/casual-employment-information-statement

  • Definition of a casual employee

A new definition of a casual employee has been provided.  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.”

If a person is employed as a casual they will continue to be a casual until they either:

  • Become a permanent employee through:
    • Casual conversion, or
    • Are offered and accept the offer of full time or part time employment, or
  • Stop being employed by the employer.

Those casual employees employed prior to 27 March 2021 and whose initial employment offer meets the new definition continue to be casual employees under the FWA.

  • Becoming a permanent employee

The amendment adds a new entitlement to the National Employment Standards (NES) providing casual employees with a pathway to become a full time or part time (permanent) employee.  This is known as ‘casual conversion’. 

This provision provides to employers, other than small businesses, when the employee:

  • Has worked for their employer for twelve (12) months
  • Has worked a regular pattern of hours for at least the last six (6) of those months on an ongoing basis
  • Could continue working those hours as a permanent employee without significant changes.

As stated above this does not apply to small businesses.  A further exception is:

  • If an employer has ‘reasonable grounds’ no to make an offer to a casual employee for casual conversion.

Making and responding to offers and requests

For details on making and responding to casual conversation please see:

https://www.fairwork.gov.au/employee-entitlements/types-of-employees/casual-part-time-and-full-time/casual-employees/becoming-a-permanent-employee

Taking legal action

Further an avenue to resolve disputes relating to casual conversion has been introduced through the Federal Circuit Court.

In such circumstances when an employee is described as casual, but through court proceedings it is determined that they are not casual, the Amendment Act introduces:

“requires a court to reduce any amounts that the employee could be entitled to by reference to casual loading amounts already paid by the employer to the employee to compensate for those entitlements.”

Further details can be found at:

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

This article has been prepared for information purposes only and is not legal advice. For legal advice regarding your specific circumstances, please contact WR Law directly on (03) 5499 6131 or by email at admin@wrlaw.com.au

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