Big changes are coming to the Fair Work Act for casual employees.
Big changes are coming for casual workers across Australia due to employment law changes now in place under the pretext of helping job recovery and growth after the COVID-19 pandemic.
The changes are already in effect as of 27 March 2021 and are bringing big changes to the way casual employment (whether genuine or in name only) are dealt with. Previously, we were able to look at the substance of an employment relationship rather than the paper contract that was signed at the commencement of employment.
What this meant was we could look at the number of hours worked by the employee, the regularity of those hours, the expectation of ongoing and regular work, and other factors to determine whether someone was a casual or permanent employee. This allowed workers to be treated fairly and stop employers for making workers casual in name only.
The new changes to casual employment now mean that much more importance is placed on the initial employment agreement between the worker and the employer rather than the substance of the work arrangements. What this means is there is a greater likelihood a worker will still be considered a casual, even though they are working under permanent worker conditions.
On the plus side, there is now a formal process for all casual workers to apply for conversion of their status to permanent employment. It remains to be seen whether this process will be workable given the potential threat to a worker’s employment when they ask for conversion to permanent employment. We can imagine the scenario where suddenly someone’s shifts dry up when they seek conversion to permanent employment status, or other action is taken to make it clear that the application is not welcome. There are of course protections against such action being taken by the employer, but it is not always possible for the worker to exercise their rights against such action, due to lack of finances or the precarious nature of their employment and the need for ongoing work.
There is also an exemption for small businesses (fewer than 15 employees) to offer conversion from casual to permanent employment.
In theory, employers are required to offer conversion to permanent employment if:
you have been employed by the employer for at least 12 months.
you have worked a regular pattern of hours for the last six months on an ongoing basis.
Your regular hours could continue as a permanent employee without significant changes.
Employers are required to make this offer to eligible employees either by 27 September 2021, or within 21 days of you working with the employer for 12 months, whichever comes later.
There’s also no obligation for the employer to offer conversion if there are “reasonable grounds” for them not to or you are not eligible. You are supposed to get written reasons for the refusal in those cases. How much details is required, and what will be considered reasonable remains to be seen.
It’s important to note that you have 21 days to respond to any offer of conversion of employment and you must respond in writing.
Workers are also allowed to request conversion to permanent employment. All the rules mentioned above apply as well as the requirement that you not refused an offer of conversion in the last six months, or been denied in the last six months. If either of those exemptions apply or you are knocked back, you can reapply again six months later.
The big question is what is going to happen when there’s no agreement about whether a worker will qualify for conversion to permanent employment.
In some circumstances there will be a dispute resolution process in the workers Award, workplace agreement or employment contract. If that’s the case, then that dispute resolution process needs to be followed through. If you are a member of a union, you should contact the union to discuss the issue further – they will be familiar with the dispute process.
If you’re not covered by an Award, agreement or employment contract dispute resolution process then you are required to try and resolve the issue directly with your employer. This is OK in theory, but there is a clear imbalance of power between an individual worker and an employer. There may well be negative consequences for a worker to dispute the employees decision to not convert to permanent employment.
If the dispute can’t be resolved by either of the methods above then you can go to the fair work commission for the Federal Circuit Court. The options to challenge a refusal to convert employment are likely to be of greater benefit to uniononised workforces where unions can support and represent a worker – and give them backing if the employer starts treating that worker differently.
Employers are not permitted to vary or reduce a workers hours or conditions to avoid an obligation to offer casual conversion. Casual workers should be aware of this , particularly when they are coming up to a deadline where conversion must be offered.
New casual workers must be given a Casual Employment Information Statement (CEIS), which advises them or their rights to conversion. All current casual employees must also be provided with the CEIS, the timeframe varying between small and large business. The CEIS can be found here.