In March 2021, the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Amendment Act) was passed, resulting in amendments to the Fair Work Act 2009. The amendments introduced a number of changes to the obligations that apply when engaging casual employees. As detailed in our member alerts at the time, key changes introduced as part of these reforms include:
- The inclusion of a definition of ‘casual employment’ into the Fair Work Act 2009,
- The requirement for employers to provide the Casual Employment Information Statement, and
- The obligation for employers to offer casual conversion (with the exception of ‘Small Business Employers) to eligible casual employees.
The transitional arrangements put in place at the time meant that many of the required actions relating to casual conversion for non-small business employers are not required to be implemented until the 27th of September 2021. With this deadline now rapidly approaching, we would like to remind our members of the requirement to ensure compliance with their casual conversion obligations by this date.
Casual Employment Information Statement Obligations
Non-small business employers:
Non-small business employers are required to provide a copy of the Casual Employment Information Statement (CEIS) to any person engaged on a casual basis.
The CEIS is to be provided as detailed below:
- For ‘existing casual employees’ who were engaged prior to 27 March 2021 – The CEIS is to be provided on, or as soon as possible after, 27 September 2021.
If you have not already provided a copy of the CEIS to your existing casual employees, you will need to ensure that a copy is provided to them by 27 September 2021, or as soon as possible after that date.
- For casual employees engaged after 27 March 2021, the CEIS should have been provided to the employee at the time of their engagement.
If the CEIS has not yet been provided to any casual employee engaged after this date, we recommend that this be provided at the earliest opportunity.
Small Business Employers:
A copy of the CEIS should now have been provided to your existing casual employees (and to any new casual employees at the time of their engagement). If the CEIS has not yet been provided to your casual employees, we recommend that this be provided at the earliest opportunity.
Requirement to assess and offer casual conversion
Non-small business employers:
Changes to the Fair Work Act 2009 now require employers (other than small business employers) to make a written offer to convert a casual employee to permanent employment (either full-time or part-time based on their regular hours) by 27 September 2021 if:
- The casual employee is an ‘existing casual’ who was engaged on or before 27 March 2021,
- The casual employee has been employed for a period of at least 12 months
- 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 undertaking the assessment:
- the employee is found to be ineligible to receive an offer to convert to ongoing employment, or
- the business has reasonable grounds to refuse to make an offer
an offer of conversion is not required. However, in such instances, you are required to provide the employee with written confirmation that they will not be receiving an offer. This notification is required to detail the grounds on which an offer isn’t being made. This may include that the employee does not meet the requirements because they have not been employed for a period of 12 months.
As an employer, if you do engage casual employees it is essential that you undertake an assessment of your current arrangements for 'existing casuals'. In particular, you need to ensure that either the offer or non-offer is provided to an existing casual employee, in writing, within 21 days of the assessment being made and before the 27 September 2021 deadline.
It is recommended that the following steps be taken for non-small business employers prior to 27 September 2021 to ensure that compliance with the casual conversion provisions is maintained:
1. Ensure that the Casual Employment Information Statement is issued to all ‘existing casuals’;
2. Ensure that the Casual Employment Information Statement is being issued to all new casual employees at the time of their engagement;
3. Assess each ‘existing casual’ employee (engaged on, or prior to, 27 March 2021) to determine their eligibility for casual conversion;
4.Within 21 days of making the assessment, and before the 27 September 2021, consult with each ‘existing casual’ employee and provide either –
- Written confirmation that they are being provided with an offer of casual conversion, or
- Written confirmation that they will not be receiving an offer for conversion to permanent employment, and the reasons as to why an offer is not being made.
5. Where an employee has received and accepted an offer of conversion,
- Meet with the employee to discuss the terms of the conversion (such as the nature of the engagement, the hours of work, removal of casual loading);
- Confirm the agreed terms of their conversion in writing, including the date that conversion will take effect. Unless otherwise agreed, the effective date will be the next full pay period.
6. Implement an internal system or process to ensure that an assessment is undertaken and an offer for conversion (or a written explanation confirming no offer is being made) is made to all other casual employees engaged after 27 March 2021 within 21 days of their 12-month anniversary.
Small business employers:
While small business employers are not required to make an offer to convert their casual employees to permanent employment (unless such provisions apply under an applicable award), an eligible casual employee can request to convert to permanent employment at any time provided that they meet the eligibility requirements.
While the detail contained in the article does pertain to the obligation for employers to make an offer to convert, a separate process does need to be undertaken where requests for conversion are initiated by an employee.
If you have any questions regarding the information contained in this article, or if you require HR Advice on any matter, please contact the team at HR Advice Online at [email protected] or on 1300 720 004.
Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such.