Changes to Casual Employment from August 26, 2024
From August 26, 2024, there will be some changes to casual employment:
- New requirements for issuing the Casual Employment Information Statement
- Updated definition of Casual Work
- Simplified process for converting employees from casual to permanent
- Changes to fixed term casual requirements for educational institutions
Casual Employment Information Statement
The Casual Employment Information Statement (CEIS) is a document with information about employment conditions that an employer has been required to provide to all new casual employees when they start.
For non-small businesses (generally under 15, but please see this link for more information) the CEIS will now need to be provided:
- As soon as possible after employment
- At 6 months of employment
- At 12 months of employment
- And every subsequent period of 12 months of employment
For small businesses it needs to be provided as soon as possible after their employment start and then after 12 months of employment.
Definition of Casual Work
From 26th August, an employee is a casual if there isn’t a 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 that they’re entitled to receive a casual loading or specific casual pay rate.
It means that the employer needs to look at the real employment relationship you have with your employee, not just what their contract says.
Some of the factors the employer must consider include whether they can offer or not offer work to the employee (and whether this is happening) and if the employee can accept or reject the work. Also, whether it is reasonably likely there will be future work available to the employee, based on the nature of the business, if there are full-time or part-time employees performing the same kind of work in the employer’s business as the work the employee usually performs and if the employee has a regular pattern of work.
Here is an example:
You have temporarily opened a kiosk by the beach, and it is busy during the first summer. You employ Mary as well as other casual employees. Mary gets a roster each week with the shifts she’s being offered for the following week, and as Mary can choose whether she will accept the shifts. She gets a paid loading of 25%. You’re not sure if the kiosk will continue operating next year.
Mary is a casual employee because there’s no firm advance commitment to continuing and indefinite work, and she’s earning a casual pay rate.
What does this mean for your business?
We recommend that when you employ new casuals you ensure they fit the definition of a casual worker, according to the arrangement rather than just their contract as an employee may be considered to not be casual even if their contract says they are a casual. The definition is based on the actual arrangements of work and pay rate.
Note: Employees who were employed casually before 26 August 2024 will stay casuals under the new definition unless they transition to full-time or part-time (permanent) employment.
Changing from casual to full-time or part-time employment (casual conversion)
The process of changing a casual employee to a permanent employee has been simplified. Previously, employers had to offer casual conversion. Now, the request comes from the employee.
Employees who start as a casual, will stay casual until their employment status changes either through a conversion process or Fair Work Commission order, or accepting an alternative employment offer and starting work on that basis.
Employees can notify their employer in writing of their intention to change to permanent employment if the employee has been employed for at least 6 months (or 12 months if working for a small business employer) and believe they are no longer defined as a casual. This is called a notification.
They can’t do this if they are currently engaged in an ongoing dispute with their employer about casual conversion, or in the last 6 months the employer refused a previous notification, or they’ve resolved a dispute with their employer about casual conversion.
How to respond to a request
Before responding, the employer must consult with the employee. This means a discussion about what will change if the employer accepts the notification and the employee becomes a permanent employee.
Then, the employer must respond in writing to the employee within 21 days of the employee giving the notification, either accepting the change, or refusing the change.
Accepting the change – If the employer accepts the change, the response must include what the new employment status will be (part-time or full-time), the employee’s new hours of work and when the change will take effect.
Refusing the change – If the employer refuses the change, the response must include the reasons for the refusal.
The employer can refuse the change if the employee still meets the definition of a casual and/or there are fair and reasonable operational grounds for not accepting the notification, including:
- substantial changes would be required to the way in which work in the employer’s business is organised
- there would be significant impacts on the operation of the employer’s business, or
- substantial changes to the employee’s employment conditions would be reasonably necessary to ensure the employer doesn’t break any rules (such as in an award or agreement) that would apply to the employee.
- accepting the change means the employer isn’t complying with a recruitment or selection process required by law.
What if the employee and employer can’t agree?
If a dispute arises and can’t be resolved at the workplace level, the dispute can be heard by the Fair Work Commission. The Commission would generally first try to resolve the dispute in an informal way. This includes by mediation or conciliation. If the dispute still isn’t resolved, the Commission is able to arbitrate the dispute. This is a more formal process and can result in a legally binding decision.
Hiring Casuals on Fixed Term Contracts
An employee can’t be engaged as a casual on a fixed term contract if all the following apply to them:
- they’re a member of the academic or higher education teaching staff of a higher education institution
- they’re not a state public sector employee
- they’re covered by the Higher Education Academic Staff Award, or Higher Education General Staff Award
We welcome you to contact our team if you have any questions regarding this matter or any other HR concerns.
