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Casual Employment Reforms in 2021 Explained

Written by Anthony Vardareff . May 07, 2021
4 min read

If you are an employer with casual staff then make sure you read on as the Federal Government has recently passed legislation amending the Fair Work Act 2009, specifically in relation to the workplace rights and obligations for casual employees. The amendments came into effect on the 27th March 2021 and are likely to impact on all businesses with casual employees. It is critical that employers are aware of these recent changes and the new obligations imposed by these recent industrial relation reforms.

Contents

Definition of a Casual Employee

One of the main changes is the introduction of a new statutory definition of a ‘casual employee’. The definition includes the following factors:

  1. 1. an offer of employment is made by the employer on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and
  2. 2. the person accepts the offer on that basis; and
  3. 3. the person is an employee as a result of that acceptance.

For the purpose of this new definition, the legislation also includes the following considerations to assist in determining whether an employer makes ‘no firm advance commitment to continuing and indefinite work according to an agreed pattern of work’ at the time the offer of employment is made:

  • whether the employer can elect to offer work and whether the person can elect to accept or reject work;
  • whether the person will work as required according to the needs of the employer;
  • whether the employment is described as casual employment;
  • whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

Once employed as a casual, an employee will continue to be a casual employee until they either:

  • become a permanent employee via:
    - casual conversion (refer below); or
    - an offer and acceptance of full-time or part-time employment, or
  • cease being employed by the employer.

Right to Convert from Casual to Permanent Employment

Another important change is the addition of a new entitlement to the National Employment Standards that provides casual employees with a pathway to convert to permanent employment (known as ‘casual conversion’).

The casual conversion rules differ for small business employers (i.e. fewer than 15 employees) and all other employers and incorporate specific eligibility criteria (including an employment period of at least 12 months). A summary of these rules can be found within the new Casual Employment Information Statement (refer below):

Casual Employees Statement Image 070521

Casual Employment Information Statement

Employers are also now required to provide a Casual Employment Information Statement (CEIS) to every new casual employee upon commencement of employment, in addition to a Fair Work Information Statement. The CEIS incorporates the following information:

  • Definition of a casual employee;
  • When an employer is required to, and not required to, offer casual conversion;
  • When a casual employee can request casual conversion and associated entitlements;
  • Steps to resolve disagreements between casual employees and their employers in relation to casual conversion; and
  • Support available from the Fair Work Ombudsman and the Fair Work Commission.

Small business employers (i.e. fewer than 15 employees) are required to provide a copy of the CEIS to all existing casual employees (employed prior to 27 March 2021) as soon as possible after the 27 March 2021. All other employers are required to provide a copy of the CEIS to existing casual employees as soon as possible after the 27 September 2021.

Next Steps

In light of the recent legislative changes to casual employment, employers should conduct a review of the current contractual arrangements with all casual employees and consider and address their new obligations.

Navigating workplace and employment laws can be a minefield for employers and substantial penalties can apply for non-compliance. Whilst the Fair Work Ombudsman website is an excellent source of information, employers should seek specialist legal advice if uncertain regarding specific conditions of employment or their workplace rights and responsibilities.

If you have questions or need direction our team can put you in touch with contacts who can assist you. Please talk with us if you would like more information.

We wish you and your business every success!


*This information is relevant at the time of publishing and is subject to change*
Written by Anthony Vardareff . May 07, 2021

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