Last month, we published a reminder that the deadline for assessing casual employees’ eligibility for conversion to permanent employment and making an offer (or ‘non-offer’) was fast approaching. All employers of casual employees (other than ‘small business employers’) were required to complete a number of actions prior to the 27th of September 2021 deadline, including assessing and notifying casual staff about whether they are eligible for casual conversion under the Fair Work Act 2009.
Before reading on, please revisit our previous article to ensure you are across all actions that employers of casual employees are required to take, prior to the September 27th 2021 deadline.
Next Steps
By now, employers of casual employees (other than ‘small business employers’) should have completed, or be completing, their assessments of casual staff to determine if they are eligible for casual conversion to a permanent role. Written offers of conversion, or written notification documenting why an employee is not considered eligible for conversion, must be supplied to eligible casual staff on or before 27th September 2021.
Through our experience with other ER Strategies’ clients, we believe that most employers generally understand these requirements and have implemented appropriate processes to ensure offers of conversion (or non-offers) are supplied to employees. However, we have also had an increase in questions about ‘what happens next?’, after the offers are made.
There are a number of actions which need to be taken following the process of assessing and notifying employees of their eligibility for conversion. Below is a list of some frequently asked questions and answers to address a few common situations we are receiving, about the ‘post-offer’ phase of the conversion process.
Question 1 – I have made an offer of conversion to an eligible casual employee. What does the employee have to do next?
Employees have a few options here. They can:
- Respond to the offer in writing and within 21 days of receiving the offer, confirming that they accept the offer of conversion, and are interested in progressing to the next stage of the process, or
- Respond to the offer in writing and within 21 days of receiving the offer, confirming that they are NOT interested in accepting the offer and wish to remain as a casual employee, or
- Not reply to the offer at all. If the employee does not reply to the offer within 21 days of receiving it, it is taken that the employee has declined the offer.
There is no obligation for employees to accept an offer of permanent employment, and employees who either respond indicating they are not interested, or who choose not to respond to the offer, will still be eligible to request conversion 6 months after the original offer was received.
All of this information is available to casual employees via the Casual Employment Information Statement that employers must provide to them upon engagement.
Question 2 – An employee has received an offer of conversion and has provided written notice that they accept the offer. What do I have to do now?
In line with the requirements of the Act, if an employee responds indicating that they accept the offer, the employer has 21 days from the date the acceptance is received to give written notice to the employee confirming:
- Whether the conversion is to full-time or part-time employment; and
- The employee’s hours of work after the conversion takes effect; and
- The specific date on which the conversion takes effect. Note: this day must be the first day of the next full pay period after the written notice is given to the employee, unless the employer and employee agree to a different day.
However, prior to giving written notice to the employee outlining the above, the employer should set up a formal meeting to discuss the next steps, including the specifics of the conversion, which will form the employee’s new employment conditions.
Once the employee and employer have agreed on the terms of the permanent employment, a new contract should be issued to the employee and the employee will then become a permanent employee on the agreed start date.
Employees can change their minds at any stage of this process if they no longer want to convert to permanent employment, but should preferably withdraw their acceptance in writing for certainty.
Question 3 – Will I have to offer conversion to employees again next year?
Existing Casuals (i.e. casual employees hired prior to 27 March 2021)
All casuals (other than casuals of ‘small business employers’) who were hired prior to 27 March 2021, need to be assessed and either provided with a written offer, or a written letter confirming why an offer is not being made, by September 27th 2021, at the latest.
For this cohort of employees, this is the only time the employer is required to assess their eligibility and for an offer (if suitable) to be made. There is no requirement under the legislation for offers to be provided again into the future, or on a regular rolling interval, once the first offer of conversion has been made.
These employees have the right to make a request for casual conversion (an employee-initiated action) any time after March 27th 2022, and at regular 6 monthly intervals, if they so choose moving forward. Information on this process is included on the Casual Employment Information Statement.
Other Casuals (casual employees hired on or after 27 March 2021 and into the future)
Any casuals (excluding casual employees of ‘small business employers’) hired at any time on or after 27th March 2021, must be assessed for casual conversion, and have a written offer (or non-offer) provided to them within the 21 days following their 12-month anniversary date.
Employers are required to identify when an employee reaches their 12-month anniversary and make this individual assessment for the employee and provide the written offer (or non-offer) within 21 days after their anniversary being reached.
This means that employers cannot just set ‘review dates’ and do a bulk review of casual staff members’ eligibility at defined intervals, or by a specific deadline, like we could with ‘existing casuals’. This was only a requirement under the transitional provisions of the legislation as a ‘fair’ way to ensure existing casuals were eligible to be assessed for an offer.
To comply with the legislation for all other casuals (including future hires), the assessment and written offer of conversion (or non-offer) must be made within 21 days after the individual employee’s 12-month anniversary date.
Employers have an ongoing commitment to ensuring this process is undertaken for any new hires, which meet the eligibility criteria. ER Strategies recommends the use of a HR Information System or process which automatically alerts the employer when an employee has reached their 12 months of service, so that the review of eligibility and written offer can be made within 21 days of this date.
[Note – ER Strategies is familiar with a number of different HR Information Systems, if you need guidance or advice]
Again, the offer made within 21 days after the employee’s 12-month anniversary date is the only offer of casual conversion the employer is required to make under the Act, during the life of the employment relationship.
These employees will also have the right to make a request for casual conversion (an employee-initiated action) any time after a 6-month period has lapsed after the initial offer was made, and at regular 6 monthly intervals, if they so choose moving forward.
Information on this process is included on the Casual Employment Information Statement.
Summary
If employers are to remember one thing from this article, ER Strategies recommends that it is the following period: 21 days.
Employers are responsible for:
- Providing an offer to employees within 21 days after their 12-month anniversary date (or, for existing casuals, as above), and,
- Responding to an employee’s acceptance of an offer, or a request for conversion, within 21 days of receiving the acceptance or request.
Similarly, employees have 21 days from the date in which the offer is received, to respond to their employer should they wish to accept the offer of conversion.
If clients of ER Strategies have any questions about the information covered above, please reach out to the team on 1300 55 66 37 to discuss your specific situation. As a reminder, suitable casual conversion templates are also available for download on our Online HR service.
Subscribers of ER Essentials who are not yet clients can call the team on 1300 55 66 37 to discuss how we can best assist your business.
