In late March 2021, the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Amendment Act) passed both Houses of Federal Parliament, amending the Fair Work Act 2009 to include reforms to workplace rights and obligations for casual employees.
As we highlighted in an article at the time, the two key aspects of the reform were:
- The insertion of a definition of ‘casual employment’ into the Fair Work Act
- The introduction of an employer obligation to provide offers of Casual Conversion (with the exception of ‘Small Business Employers) to eligible casual employees, which now forms part of the National Employment Standards.
What is a ‘Small Business Employer’?
A small business employer is an employer with fewer than 15 employees at a particular time. If an employer has 15 or more employees at a particular time, they are considered no longer a small business employer. When counting the number of employees, employees of ‘associated entities’ of the employer are also included. Regular and systematic casuals are also included in calculating the number of employees.
Casual Employment Information Statement
In line with the transitional provisions, employers should have provided a provide a copy of the Casual Employment Information Statement (CEIS) to existing casual employees (casual employees engaged prior to 27 March 2021). If not done already, it is important to provide these employees with a copy of the CEIS as soon as possible.
All other casual employees (including all casual employees of Small Business Employers regardless of hire date, and all other casual employees engaged on or after 27 March 2021) should have already had a copy of the CEIS provided to them. If you haven’t done so, you should do it now.
Offers of casual conversion
The transitional provisions require employers of casual employees (other than Small Business Employers) to have assessed and made offers of casual conversion (or written explanation as to why an offer is not being made) to all eligible casual employees by 27 September 2021. These offers and ‘non-offers’ must be in writing.
To recap, employers (other than Small Business Employers) need to make a written offer to convert their casual employee to permanent employment (full-time or part-time) by the 27 September if:
- The casual employee is an ‘existing casual’ who was engaged on or before 27 March 2021,
- The casual employee has worked a regular pattern of hours on an ongoing basis for at least the last 6 months, and
- The casual employee could continue working these hours as a full-time or part-time employee without having to make significant adjustments.
If after an assessment of the casual employee, the employee if found to be ineligible to receive an offer, or the business has reasonable grounds to refuse to make an offer, an offer of conversion is not required. However, the employer is still required to provide the employee with written confirmation that they will not be receiving an offer, including documenting the grounds on which an offer isn’t being made. This letter needs to be provided to existing casuals prior to 27 September 2021.
Employers who have not yet made this assessment must review their current casual employee arrangements no later than Monday 6 September, to ensure that the offer or non-offer is provided to the employee within 21 days of the assessment being made, and before the 27 September 2021 deadline for existing casuals.
For more information about eligible employees, providing offers, or not making an offer to existing casual employees, please review our interactive guide on the casual conversion legislation here.
What should you do?
Below is a list of the actions that need to be taken by employers (other than Small Business Employers) prior to the 27 September 2021 –
1. Issue the Casual Employment Information Statement to all ‘existing casuals’ as soon as possible;
2. Assess all ‘existing casuals’ for their eligibility for casual conversion;
3. Within 21 days of making the assessment provide employees with either –
- Written confirmation that you are providing them an offer of casual conversion to either full-time or part-time employment, or
- Written confirmation that the employee will not be receiving an offer for conversion to permanent employment, including the business reasons why.
4. For any employees who have received and accepted an offer, follow through with the process of conversion as per the legislation. This includes:
- Setting up a meeting with the employee to discuss the terms of conversion (e.g. hours of work, commencement date, etc);
- Following verbal consultation, confirming the terms of their conversion in writing, including:
– If the conversion is to full-time or part-time,
– The employees’ hours of work post conversion (applying any relevant award provisions),
– The date the conversion takes effect (must be the next full pay period unless another date is agreed).
5. Following this period, employers should implement systems to ensure that for all casuals engaged after March 27 2021, the employer is prepared to make an offer (or provide written explanation confirming no offer is being made) to all other casual employees within 21 days of their 12-month anniversary. Casual conversion is an ongoing obligation for all employers of casual employees.
6. All employers (including small business employers) should familiarise themselves with the employer response requirements for any requests for casual conversion made by employees in the coming months/years. Requests for conversion from employees is a process separate from offers of conversion, and applies to small business employers.
Need Help?
Clients of ER Strategies can call the team on 1300 55 66 37 to discuss their casual conversion obligations.
Clients of ER Strategies can also be provided with a pre-recorded webinar explaining the changes, and suitable templates which can be used throughout the conversion process.
If you are not a client of ER Strategies, you are encouraged to contact the team on 1300 55 66 37 to see how we can best assist your business, or contact us by clicking here.
