If you employ staff on a casual basis then read on, this may apply to you. The workforce may start to become less casual and we don’t mean you are losing your casual Friday’s. Subject to certain criteria, casual workers have recently been given the right to convert to part-time or full-time employment.
From 1 October 2018, new obligations in relation to casual employees will be inserted into eighty-five Modern Awards, as a result of the Casual Employment Decision from the Fair Work Commission. This obligation entitles casual employees, engaged on a regular and systematic basis for a period of 12 months, to request conversion to full-time or part-time employment.
It is noted that some modern awards already have casual conversion provisions where the clause may read differently. We recommend that you check your award to see what your obligations are.
But what does this all mean? Today we will look at your new obligations and what this may mean for you and your business.
Which casual staff does this affect?
The Fair Work Commission has developed a model conversion clause which will allow a casual worker to request conversion to part-time or full-time employment if they have:
- been employed for at least 12 calendar months; and
- worked a pattern of hours on an ongoing basis over the 12 month period which could continue to be performed on a full-time or part-time basis without significant adjustment; and
- worked regular and systematic shifts; and
- is covered by a Modern Award.
It is important to remember that, generally speaking, most casuals want the flexibility and the 25% higher pay, that comes with being a casual.
On what grounds can I refuse?
As an employer, you can refuse a request to convert to part-time or full-time on the grounds that:
- it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time or part-time employee in accordance with the provisions of this award – that is, the casual employee is not truly a regular casual employee as defined in the award.
- it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months
- it is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months; or
- it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.
What are my obligations?
From 1 October 2018, employers will be subject to notification obligations.
For existing casual employees, whether engaged on a regular basis or not, they must be provided with a copy of the Award’s casual conversion clause prior to 1 January 2019. For all new casual employees, they must be provided with a copy of the clause within their first 12 months of employment. Failure to provide this to employees will be a breach of the Fair Work Act 2009 (cth) and can attract a penalty for you and your business.
Dealing with requests for conversion
If an employee wishes to convert to permanent they must first put their request in writing. When you receive the request, you should deal with each case separately, as each case will be different.
In considering their request, you should ask yourself “has the request been made in compliance with the Awards terms?” If you decide to refuse the request, you must give the casual employee the reason for refusing the conversion in writing within 21 days. If the employee does not accept your refusal, the employee can commence a dispute resolution process, which may be referred to the Fair Work Commission if not resolved.
Our recommendations
- On 1 October 2018 check the applicable Modern Award or enterprise agreement to determine you obligations, familiarise yourself with them and ensure compliance.
- For existing employees, notify them as soon as possible, after 1 October 2018, by providing them with a copy of the clause from their relevant Award. For new employees we recommend adding the clause into your casual employment contract.
- Keep records! Keep an accurate record of the hours worked by your casual employees, to assist you in determining if their work is “regular and systematic.” Keep the record of issuing the notification, the record of the employee asking for conversion and the response given to the employee.
- Audit the working arrangements of current casual employees to determine who is likely to be deemed “regular and systematic” and therefore qualify for the conversion entitlement.
- Seek early advice from a HR expert or the Fair Work Commission if you plan to refuse a conversion request.
We urge all businesses to ensure they are up to date on their obligations. There are a wide range of free resources available on the Fair Work website or chat to one of our Inspire HQ HR Experts today.
Caleb is a Human Resources Graduate who works with Inspire HQ to help deliver high quality and professional HR & Recruitment services. His friendly, helpful and approachable style tailored with his can-do attitude will help you and your business achieve the best outcomes possible. He holds a Bachelor of Business in Human Resources from Federation University Australia.
Disclaimer: The material contained in this publication is of a general nature only. It is not, nor is intended to be, legal advice. If you wish to act based on the content of this publication, we recommend that you seek professional advice.
1 – https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb4695.htm
2 – Wood, S. (2017). Fair Work Commission decision to give casual workers the right to request permanent employment. Third Dimension, (18), 2-3. Retrieved from https://www.millsoakley.com.au/
