by Serge GorvalChanges to Casual Employment
Law changes surrounding casual employment and definition
Recently, there have been significant changes to the legal definition of ‘casual employee’ in Australia.
On 26 March 2021, several sections of the Fair Work Act 2009 (Cth) (FW Act) were amended to reflect a new definition of ‘casual employee’. This article will answer:
- What is the current definition of a casual employee?
- What does this mean for employers?
- What does this mean for casual employees?
- What do I do if there is a disagreement?
What is the current definition of a casual employee?
A casual employee is now defined in s 15A of the FW Act.
The Casual Employment Information Statement (CEIS) published by the Fair Work Ombudsmen provides a summary of the new definition of a casual employee:
“you are a casual employee if:
- you are offered a job
- the employer makes no firm advance commitment that the work will continue indefinitely with an agreed pattern of work
- you accept the offer knowing that there is no firm advance commitment and become an employee
Whether you’re a casual employee is assessed at the time you are offered and accept the job.”
An employer offering ‘no form advance commitment’ means that either:
- the employer can choose to offer the employee work, and it is that employee’s choice to accept the work or not;
- the employer will offer work based on their need for the employee to work;
- the employer has described the position as ‘casual’; and/or
- the employer pays the employee a casual loading or specific pay rate only for casual employees.
What does this mean for employers?
What are the requirements for providing a CEIS?
If you are an employer, you must provide your casual employees a CEIS before they start working for you, or as soon as possible afterwards. A copy of the CEIS can be found here.
Small business that already have casual employees should provide their casual employees with a CEIS as soon as possible after 27 March 2021, and all other business as soon as possible after 27 September 2021.
What is casual conversion?
The amendments to the FW Act have provided for circumstances when a casual employee must be offered permanent employment or may request to be made a permanent employee.
When do you have to make an offer?
If you are a business with less than 15 employees, you do not have to make an offer for permanent employment.
If you are a business with more than 15 employees, you must make a written offer to casual employees within 21 days of their 12-month anniversary of working for you (or by 27 September 2021 if they have been working longer than 12 months) who:
- have been employed by you for 12 months,
- have worked a regular pattern of hours for a minimum of 6 months prior on an ongoing basis, and
- the employee’s regular hours could continue as a permanent employee without large changes.
When can an employee request permanent employment?
There are circumstances in which casual employees can request permanent employment. Please see a more detailed description under ‘Can I request permanent employment?”.
What does this mean for casual employees?
When do I receive a CEIS?
You have a right to receive a CEIS from your employer. This will likely be given to you once you begin your casual employment, by 27 March 2021 if the business has less than 15 employees, or by 27 September 2021 if the business has more than 15 employees.
What happens if I am eligible to get an offer of permanent employment?
If you fit the criteria of a casual employee who is entitled to get an offer of permanent employment, you must respond to the offer within 21 days.
Can I request permanent employment?
If you are employed by a business with more than 15 employees, after 27 September 2021 you can make a request to become a permanent employee if you fit all the following:
- You have been employed by the business for more than 12 months;
- You have been working, on an ongoing basis, a regular pattern of hours in the last 6 months;
- Your normal hours could continue as a permanent employee without the need for large changes;
- You have not rejected a permanent employment offer within 6 months;
- Your employer has not raised reasonable grounds that you cannot become a permanent employee in the last 6 months; and
- You have not already made a failed request to become a permanent employee in the last 6 months.
If you satisfy these criteria, you can make a request in writing 21 days after your 12-month anniversary of working for your employer. Your employer must respond within 21 days and can only refuse your request after speaking to you, reasonable grounds exist, and the refusal is put in writing.
If you are employed by a business with less than 15 employees, you do not have to wait for 27 September 2021 to make a request.
What do I do if there is a disagreement?
If you have a disagreement with your employer about any of the above, you should follow these steps:
- If you are covered by an award, employment contract or agreement that specifies how to deal with disputes, you must follow that process.
- If you don’t have any of the above, you should seek to resolve your dispute internally with your employer.
- If you cannot resolve the problem internally, seek the advice of the Fair Work Commission by contacting 1300 799 675.
- If the Commission directs you to seek the services of a lawyer, contact our friendly staff at Gorval Lynch on 1300 031 998 or info@gorvallynch.com.au who will be more than happy to help you.
by Serge GorvalRedundancy and Covid-19
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