The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021 (the “Amendments”) which amends the Fair Work Act 2009 (Cth) (the “Act”) recently passed both Houses of Parliament on 22 March 2021. The Amendments will impose several new obligations on employers in respect of casual employees, including the obligation to make a casual conversion offer.

Casual Employment Information Statement

In addition to the changes to casual employment in the Act, employers are now required to give every new casual employee a Casual Employment Information Statement (“CEIS”) before, or as soon as practicable after, an employee starts employment as a casual employee. The CEIS will provide casual employees with information on casual employment, and how offers and requests for casual conversion can be made in line with the relevant provisions of the Act. The CEIS also provides information on how casual employees can seek assistance in resolving disputes related to casual conversion.

Small business employers (those who employ less than 15 employees) are required to give their existing casual employees (who began employment before 27 March 2021) a copy of the CEIS as soon as possible after 27 March 2021. All other employers are required to give their existing casual employees (who began employment before 27 March 2021) a copy of the CEIS as soon as possible after 27 September 2021.

When is an employer required to make a casual conversion offer?

The Amendments have introduced rights to “casual conversion” for casual employees, which mean that employers are now required to offer casual employees with full or part-time employment (depending on their equivalent working hours) provided they meet the following criteria:

• the employee has been employed by the employer for a period of 12 months;
• during at least the last 6 months of that period, the employee has worked a regular pattern of hours on an ongoing basis; and
• without significant adjustment, the employee could continue to work as a full-time or part-time employee.

Employers must make a casual conversion offer in writing before 27 September 2021 or within 21 days after 12 months of employment has occurred, whichever is later. Once the offer has been made, the employee has 21 days to respond. Small business employers are not obligated to offer casual conversion to their casual employees.

When can a casual employee request casual conversion?

Casual employees who are employed in a small business or otherwise have the right to request to become a permanent employee if:

• the employee has been employed by the employer for a period of 12 months;
• during at least the last 6 months of that period, the employee has worked a regular pattern of hours on an ongoing basis;
• without significant adjustment, the employee could continue to work as a full-time or part-time employee;
• the employee has not refused an offer for casual employment;
• the employer has not notified the employee in the last 6 months that they will not be offered casual employment on reasonable grounds; and
• the employer has not refused a request from the employee to become a permanent employee in the last 12 months.

If the employer is a small business, the casual employee can make a request as soon as they meet the above conditions. For causal employees who work for an employer who is not a small business, the request cannot be made until after 27 September 2021.

The employee must make the request in writing and within 21 days after completing 12 months of employment. The employer must respond within 21 days and can refuse the request on reasonable grounds.

Reasonable grounds to refuse casual conversion

An employer can refuse to make an offer or refuse to accept a request of an employee if there are reasonable grounds not to make the offer, and those reasonable grounds are based on facts that are known, or reasonably foreseeable, at the time of deciding not to make the offer. The grounds for refusal can include:

• the employee’s position will cease to exist in the period of 12 months after the time the employer decides to not make the offer;
• the employee’s hours of work will be significantly reduced in that 12 month period;
• there will be a change in the days or times in which the employee’s hours of work are required to be performed; or
• making the offer would not comply with a recruitment or selection process required by law.

An employer must give the employee written notice and reasoning if they decide not to make the offer to the employee due to reasonable grounds.

Disagreements about casual conversion

The CEIS also outlines that disagreements relating to casual conversion should be attempted to be resolved directly between the employee and the employer in the first instance. Where an employee is covered by an award, enterprise agreement or employment contract which sets out a process for resolving disputes in relation to the National Employment Standards, these processes will need to be followed.

Employees may seek assistance from the Fair Work Ombudsman and the Fair Work Commission. Alternatively, employees can bring a small claims proceeding in the Federal Circuit Court in connection to a dispute related to their rights to casual conversion.

Key takeaways

• Employers are required to give all new casual employees a CEIS before, or as soon as practicable after they begin new causal employment.
• Employers who are a small business must give all existing casual employees a CEIS as soon as possible after 27 March 2021.
• Employers who are not a small business must give existing casual employees a CEIS as soon as possible after 27 September 2021.
• Employers may be required to make a casual conversion offer to casual employees and casual employees may have the right to request casual conversion in specific circumstances.
• Casual conversion may be refused based on reasonable grounds.

People + Culture Strategies