The new statutory definition of ‘casual’ employment in the Fair Work Act (explained in our earlier article) comes with a new regime for dealing with casuals.
Below is our summary of the other aspects of the regime which employers need to know.
The new Casual Employment Information Statement
In addition to the Fair Work Information Statement, employers must now provide new casual employees with a Casual Employment Information Statement (Statement).
Employers must also give the Statement to casuals who were employed immediately before 27 March 2021:
- in the case of small business employers - as soon as possible; and
- for all other employers - as soon as possible after 27 September 2021.
Casual conversion to permanent employment
A new statutory regime for casual conversion has been introduced, featuring:
- qualifying criteria;
- reasonable business grounds on which employers can refuse to make offers;
- strict timelines for the making of offers, for responses, and for providing certain notices; and
- residual rights for certain casuals to make requests for conversion.
Small business employers are exempt from having to make offers, but their casual employees can make requests for conversion.
To help employers understand the key steps of new regime we have prepared a flowchart, available for download at the end of this article.
New rights and obligations
Employers are prohibited from reducing or varying an employee’s hours of work, or terminating an employee’s employment, to avoid any right or obligation under the new conversion provisions.
Doing so may be a breach of general protections provisions.
Despite this, nothing in the new provisions:
- requires an employee to convert to full time or part time employment;
- allows an employer to require an employee to convert to full time or part time employment; or
- requires an employer to increase the hours of work of an employee who requests conversion to full time or part time employment under the Fair Work Act.
A new dispute resolution process
If there is a dispute about casual conversion, a new dispute resolution process provides:
- workplace level discussion as a first step; and then
- if the workplace discussions are not successful - a role for the Fair Work Commission to hear and deal with dispute applications.
The parties have a right to be represented through the process. However, the Fair Work Commission will continue to decide whether it grants the parties permission to be represented by lawyers.
This new process is likely to have limited application – it will not operate if there is a modern award, enterprise agreement, contract or other agreement between the parties that includes a process for resolving the dispute.
Effect of the new casual provisions on enterprise agreements and modern awards
The new provisions will undoubtedly create difficulties in applying the terms of existing enterprise agreements and modern awards.
The Fair Work Commission will now play an important role in addressing these difficulties by:
- hearing applications to vary enterprise agreements; and
- conducting a review of modern awards with casual provisions.
How do employers prepare for these changes?
In addition to the tips in our earlier article, there are several other things that employers must start doing now to ensure compliance with the new casual regime:
- Update their systems to ensure the new Casual Employment Information Statement is provided when required
- Implement systems to track casual conversion obligations - our free casual conversion flowchart explains the key steps and is available for download here;
- Ensure that they have template conversion documents ready
- Train managers and HR on the new rights and obligations created
- Consider whether any existing enterprise agreements need to be varied
This summary is just a brief snapshot of the new changes - there is considerable detail to absorb. Our Workplace Relations and Safety team are available to help you understand and prepare for these changes.