Casual employment changes - 15 or more employees

Our Workplace Relations Team has received a number of inquiries from private practices asking for assistance and advice on changes to casual employment. We've summarised the key information, in chronological order, to help you implement these changes in your practice. The information and advice provided is for general guidance only.  It is not intended to be, nor should it be, relied upon as a substitute for legal or other professional advice.

From 27 March 2021, the employers of 15 or more employees must provide new casual employees with a Casual Employment Information Statement as soon as possible after they start employment.

Also from 27 September 2021, employers must provide existing casual employees with a Casual Employment Information Statement.

Do employers need to offer casual employees conversion from casual to permanent employment?

Circumstances where employers do not need to offer casual conversion are where:

1. the employee was made a firm advance commitment to continuing and indefinite work at the start of their casual employment [what does this mean in lay person terms? A regular pattern of work is not enough to avoid the casual conversion provisions]; or
2. there are reasonable grounds within the meaning of these laws for the employer not to offer casual conversion.

If neither of the above circumstances apply, the employer must offer the casual employee conversion on the soonest of the following events:

1. 21 days after the casual employee’s 12-month anniversary since starting employment (in the second 6 months, the employee has worked a regular pattern of hours on an ongoing basis); and
2. 27 September 2021.

What must an employer do to meet its legal obligations in offering casual conversion?

1. Employer to discuss casual conversion with the employee
   The employer must first discuss with the employee the offer:
   1. To convert the employee from casual employment to permanent full-time or part-time employment;
   2. The date of which the employee’s conversion takes effect; and
   3. The hours of work the employee will perform in the permanent employment.
2. Employer to confirm in writing the casual conversion
   The employer must, within 21 days, after the employee accepts the offer, give written notice to the employee that:
   1. The employee is converting to full-time employment or part-time employment;
   2. The date on which the employee’s conversion takes effect; and
   3. The post-conversion hours of work the employee must perform.

What is the employee’s duty to respond to its employer’s offer of casual conversion?

The employee must state whether they accept or decline the offer within 21 days after the employer gives the offer. If the employee fails to give the employer a written response, the employee is taken to have declined the offer.

Can employees request their employers convert them from casual employment to permanent employment? 

From 27 September 2021, casual employees can make a request if the employee:

• has been employed by the employer for at least 12 months;
• has worked a regular pattern of hours in the last 6 months on an ongoing basis;
• regular hours could continue as a permanent employee without significant changes;
• has not refused a previous offer to become a permanent employee in the last 6 months;
• has not told the employee in the last 6 months that they will not be offered casual conversion on reasonable grounds; or
• has not already had a request for conversion refused by their employer, based on reasonable grounds in the past 6 months.

The request must be in writing and be a request to convert from casual employment to either permanent full-time employment or permanent part-time employment. The employee can make the request 21 days after the employee’s 12-month anniversary, from 27 September 2021.

Is there a limit to how many employee requests can be made?

An employee is only eligible to make a second request for conversion, 6 months after the initial request where the refusal is on reasonable grounds.

When can an employer not offer, or refuse a request for, casual conversion?

It is a 3-step process, the employer must have reasonable grounds for refusing the request, must have consulted the employee about its decision and must then confirm its decision in writing to the employee, refusing the request for casual conversion.

An employer is within its rights to not offer, or refuse a request for, casual conversion:

1. Where there are reasonable grounds for refusing casual conversion; AND 
2. the employer has consulted the employee.

The term ‘reasonable grounds’ is not exhaustively defined.  It carries its general meaning. The Act requires that any grounds for refusing casual conversion are based on known facts or facts that are reasonably foreseeable at the time of refusing the casual conversion.

Reasonable Grounds

This means reasons for refusal that are fanciful or far-fetched or based on an unlikely event will not be acceptable.

The Act states that reasonable grounds can include that:

1. in the next 12 months:
   1. The employee’s position will cease to exist (e.g. the closure of a private practice)
   2. The employee’s hours will significantly reduce (e.g. a restructure of the private practice and/or a reduction in hours of the employee due to a change in business operations)
   3. The employer will require the employee to work days and times that do not fit with the availability of the employee; or
2. It would require a significant adjustment to the employee’s hours of work in order for the employee to be employed as a full-time employee or part-time employee; and
3. making the offer would not comply with a recruitment or selection process required by or under a Commonwealth, State or Territory law.

The examples of reasonable grounds provided possibly qualify as reasonable grounds but until these provisions are better explained through legislative means or by a court, we cannot provide any definitive advice only general guidance.

Consultation

The term “consultation” is not defined but the employer would need to, at minimum, have a discussion with the employee about the option of casual conversion.  

What this discussion would entail is not clear from this new legislation but one approach might be to discuss with the employee information about the grounds for refusal of the offer or request and invite the employees to give their views about the impact of the decision to not convert them from casual to permanent employment status.

The above suggestion as to the nature of the consultation is a mere suggestion and until these provisions are better explained through legislative means or by a court we cannot provide any definitive advice on this matter only general guidance.

Notification

The employer must then notify the employee of the decision to refuse conversion, in writing, within 21 days of the employee making the request for casual conversion.

The Notice must:

1. advise the employee that the employer is not making an offer; and
2. include details of the reasons for not making the offer (including any grounds on which the employer has decided to not make the offer); and
3. be given to the employee within 21 days after the end of the 12-month anniversary date of the casual’s employment.

 

For further information, please attend the Workplace Relations Webinar on Casual Conversion on 29 April 2021 at 6pm. Register now.