The 2021 casual employment changes – what do employers need to know?
A number of sections of the Fair Work Act relating to casual workers were recently amended. If you are an employer, there are 3 key things that you need to be aware of!
1. There is now a definition of ‘casual employee’ in the Fair Work Act.
Until this legislation change, the term casual employee was not actually defined. The new definition confirms many of the hallmarks of casual employment that have been clarified over the years, and sets limits around the factors that will be considered when determining whether somebody is a casual.
Essentially, a employee is a casual if an employer makes an offer of employment on the basis that there is “no firm advance commitment to continuing and indefinite work”, and the employee accepts the role on that basis.
Crucially, the new amendment makes it clear that the determination of whether somebody is a casual is only based on the offer and acceptance of the employment – and not any subsequent conduct. If a person is offered employment that fits the definition at the time, and is not based on any firm advance commitment to work, this is all that is required – even if the person ends up working set or even full time hours.
The Act also clarifies that the simple fact of somebody working regular or set hours does not make them a casual.
2. Employers must give all casual workers a copy of the Casual Information Statement.
You can download the statement from the Fair Work website, here.
Small business employers (those with less than 15 employees) must give their casuals a copy as soon as possible after 27 March, 2021.
All other employers must give their casuals a copy as soon as possible after 27 September 2021.
3. There is now a pathway for casual employees to convert to permanent employees.
Many Awards have had similar casual conversion provisions in them, but this new ‘casual conversion’ provision applies to all casuals, whether Award covered or not.
The conversion pathway applies where a casual has been working for the same employer 12 months or more, has worked regular shifts or shift patterns for at least 6 months of that time, and their employment could reasonably continue on an ongoing basis.
Note that there are different requirements for small businesses, and larger employers. Large employers are required to offer permanent employment to casuals who meet particular requirements. Note, this is a positive requirement. If there are grounds for not making an offer (see below), employers need to communicate this in writing to their employee, along with their reasons.
Small business employers are not required to offer permanent employment. Ie, there is no positive obligation on small business employers. However, any casual can request that their employment be converted to a permanent role, and their employer must consider any such request.
Not making conversion offers, or rejecting requests for conversion
Employers don’t have to offer ongoing employment to employees if there are “reasonable grounds” for not making an offer, and these grounds are based on things that are known or foreseeable at the time of not making the offer. An example might be, the role will cease to exist in the following 12 months, the hours will significantly reduce, or there will be changes to the business which will require the dates or times of the casual work to be significantly altered.
As noted above, however, a decision not to make an offer of permanent employment must still be communicated to employees.
For small business employers, the same principles apply – if an employee requests to have their casual role converted to a permanent role, this request can be rejected if these reasonable grounds apply.
Do you need to know more?
We are here to help. Understanding and complying with your employment law obligations can be confusing at the best of times, and the consequences of getting it wrong can be awful. If you’re not entirely sure about what you need to do, or if you need to do anything at all, reach out.
Legislative changes like this are a great time to take a closer look at all of your employment arrangements, contracts and policies and make sure that your employees are engaged correctly, and that everybody is on the same page.
Please feel free to book a free 15 minute consult on our website, or contact firstname.lastname@example.org for a confidential discussion.Go back