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Changes to casual employment

31 May 2021 | Frances Thomas, BA, LLB (Hons), Senior Solicitor, Professional Conduct - Employment, Avant Law

Casual employment is in the spotlight given recent changes to the Fair Work Act 2009 (Cth) (FW Act).  Our top tips for practices are below.

Tip 1:  Review casual employment contracts

An employment contract can now establish a legally recognised casual employment relationship even if the employee works regular and systematic hours.

Practices should consider whether their current casual employment contracts include the new statutory definition of casual employee. If not, current casuals may be regarded as ongoing employees.

Practices should also ensure their template casual employment contracts comply with the new definition to cover new casual staff.

The FW Act now says that a casual employee is:

  • a person who is offered a job by a prospective employer
  • at the time the offer is made, it does not include a firm advance commitment that:
    • the work will continue indefinitely
    • with an agreed pattern of work
  • the person accepts the offer, knowing that there is no firm advance commitment and become an employee.

The following points will be considered to determine whether the employer’s offer constitutes a firm advance commitment that the work will continue indefinitely with an agreed pattern of work:

  • the employer can choose to offer the employee hours of work and the employee can choose to work or not
  • the employee will be offered hours of work when the business needs them to work
  • the employment is described as casual
  • the employee is paid a casual loading (a higher pay rate for being a casual employee), or a specific pay rate for casual employees.

Tip 2:  Offer conversion to ongoing employment

Employers with 15 or more employees must offer to convert eligible casual employees  to ongoing employment unless there are reasonable grounds for them not to do so and they advise the employee in writing. 

Eligible casual employees:

  • have been employed for at least 12 months;
  • have worked a regular pattern of hours for at least 6 months; and
  • those regular hours could continue without significant change if the employee transitioned to a permanent employee. 

Practices with 15 or more employees have until 27 September 2021 to offer ongoing employment to eligible casuals employed as at 27 March 2021, or to inform them in writing of the decision not to do so and the reasonable grounds for the decision.

Tip 3:  Request for casual conversion 

The FW Act now allows eligible casual employees to request conversion to ongoing employment.  This right is in addition to any right that the casual employee has under an award.

Tip 4:  Casual Employment Information Statement

Medical practices must provide a Casual Employment Information Statement to all existing and new casual employees.

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