Changes to Casual Employment Laws
Several changes to casual employment will be introduced by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 (Cth) which endeavour to create fair treatment for casual employees (the Changes).
Summary of the Changes
- Definition of Casual Employees
The new definition of a casual employee will focus on the absence of an employer’s “firm advance commitment to continuing and indefinite work”, and any entitlement to casual loading or a specific casual pay rate under an award, registered agreement or employment contract.
Whether there is a firm advance commitment will require an assessment of the “real substance, practical reality and true nature of the employment relationship”, and several other “factors” including whether the employer can offer or not offer work to the employee (and whether this is happening), whether the employee can accept or reject work (and whether this is happening) and whether the employee has a regular pattern of work even if it changes over time due to, for example, reasonable absences because of illness, injury or other leave.
- Casual Conversion Process
The current procedure for casual conversion to full or part-time (permanent) employment will be replaced by a new “employee choice pathway.” If a casual employee believes that they no longer satisfy the requirements of the new casual employee definition, provided that they have been employed for at least 6 months (12 months if employed by a small business), the casual employee may provide written notice to their employer to change to permanent employment, subject to a select number of exclusions. An employer must consult with the employee and provide its response within 21 days upon receipt of such a notice.
An employer may reject a casual employee’s request for casual conversion only if the employee still meets the definition of a casual employee, accepting the change would mean the employer will not comply with a recruitment or selection process required by law, or there are “fair and reasonable operations grounds” for not accepting the notification.
Compliance
From 26 August 2024, employers will also be required to provide a new Casual Employment Information Statement (the Statement) to casual employees prior to the commencement of employment, after 6 and 12 months of employment and then after every 12 months of employment (small business employers will only have to provide the Statement prior to the commencement of employment and after 12 months of employment).
Preparing for the Changes
To ensure compliance with the Fair Work Act 2009 (Cth), employers need to review their policies, procedures and employment contracts.
Employers should also be aware that it cannot take certain actions to avoid their obligations or an employee’s rights to change to permanent employment, and casual employees are also protected against adverse action by an employer because they have exercised a workplace right.
Staying informed and prepared will help both employers and employees navigate these new regulations effectively.
If you have any questions about the changes to casual employment and what they could mean for you as an employer or employee, please do not hesitate to contact Nick Stevens, Josh Hoggett, Evelyn Rivera or Ayla Hutchison.
