Casual employment changes
On 26 August 2024, there are more casual employment changes for employers to consider:
- a new definition of “casual employee” comes into effect;
- casual employees will have the right to request to convert their casual employment to a permanent one after 6 months (instead of 12 months); and
- Casual employee information statements have to be provided more often
New definition of casual employment
From 26 August 2024, a new definition of casual employment in the Fair Work Act 2009 (Cth) (Act) applies as follows:
“An employee is only a casual where:
(a) there is no firm advance commitment to continuing and indefinite work, considering a number of factors, including the real substance, practical reality, and true nature of the employment relationship, and
(b) they are entitled to receive casual loading or a specific casual pay rate.”
This is a substantial move away from the prior position in s.15A of the Act following the High Court of Australia’s judgment in Workpac Ltd v Rossato & Ors [2021] HCA 23 that determinative weight is to given to what was stated in the employment contract. Now there is no single determinative factor of casual employment but rather the substance of the arrangement is to be considered.
Employee choice – casual conversion
Generally, from 26 August 2024, where an employee of a business (other than small businesses) believes they no longer meet the new casual employee definition, they will have the right to request conversion of their casual employment to a permanent one after 6 months instead of 12 months.
Prior to this date, once a casual had been employed for 12 months and was working a regular pattern of hours on an ongoing basis without significant change in the last 6 months of their employment, the employer had to make a written offer of casual conversion within 21 days of the anniversary of their commencement date and the employee had 21 days to accept or reject it. Similarly, a casual could request it and the employer could only reject it within 21 days on reasonable grounds or if the employee didn’t meet the regular pattern requirement.
For small business employers, from 26 February 2025, casual employees will have the right to request to convert their casual employment to a permanent one after 12 months. Prior to this, small business employers did not have to deal with casual conversion requests or offer them at all.
Under the new regime, employers may still refuse but only on grounds that the definition isn’t met or that fair and reasonable operational grounds apply such as that it would have a significant impact on the business, that substantial change to the business is required etc.
Casual Employment Information Statements
From 26 August 2024, the Casual Employment Information Statements will need to be provided to
- new casual employees before, or as soon as possible after, they start their casual employment
- all casual employees employed by non-small businesses as soon as possible after
- 6 months of employment
- 12 months of employment; and
- every subsequent 12 months of employment
- all casual employees of small businesses as soon as possible after 12 months of employment.
Note that there is no change to the requirement for Fair Work Information Statements on commencement of employment.
Steps for employers to take
Employers should urgently:
- check the commencement date for all staff and diarise to review obligations each 6 months
- send CEIS as required
- consider whether employees are in fact casual
- consider if conversion offers need to be made
- if necessary, issue updated Contracts of Employment
FURTHER INFORMATION
For further information, contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.
