Could your casual staff become permanent?
From 1 October 2018, under new ‘casual conversion clauses’ included in most modern awards, casual employees have the right to convert to permanent employment if they meet the requirements of the award.
Casual v Permanent
Casual employees do not enjoy the same rights or protections as part-time or full-time employees.
Casual employees are not entitled to termination notice, paid annual leave or paid personal/carer’s leave. However, they are paid a higher hourly rate to compensate for these entitlements.
All casual employees are protected from discrimination and from adverse action because they exercised a workplace right or participated in industrial activity, however:
– only “long term casual employees” can claim unpaid parental leave or request flexible working arrangements; and
– only some casual employees are protected from unfair dismissal.
Who is a casual employee?
There is no definition for a casual employee.
The courts have held that a person is not a casual employee simply because their employment contract provides they are, or because they are paid the casual hourly rate. However, both of these may be factors which indicate an employee is casual.
Other factors which point to an employee being casual include where the employee:
1) has no certainty of on-going work;
2) has no obligation to accept work offered;
3) works irregular or intermittent shifts; and
4) contacts the employer to ask for work or to find out their shifts.
Right to convert from casual to permanent
While ‘casual conversion clauses’ vary between the awards, broadly, a ‘regular casual employee’ may request in writing to be converted to a permanent part-time or full-time employee (depending on whether the employee has worked the equivalent full-time hours during that period).
A ‘regular casual employee’ is an employee who has in the last 12 months worked a pattern of hours on an ongoing basis which they could continue to work as a part-time or full-time employee without significant adjustment.
If an employer agrees to a request to convert, the employee and employer must discuss and record in writing the terms of the conversion (i.e. whether it is part-time or full-time and when it is to take effect).
An employer may refuse a request to convert to permanency, but only on reasonable grounds and only after consultation with the employee.
Refusing a request to convert
Reasonable grounds to refuse a request include:
1) the employee is not a ‘regular casual employee’;
2) the employee’s position will cease in the next 12 months;
3) the employee’s hours will be significantly reduced in the next 12 months; or
4) there will be significant changes in the days or times the employee is required to work to days or times that the employee is not available.
The reasons must be based on facts that are known or reasonably foreseeable.
The employer must provide any refusal in writing within 21 days of the request.
If an employee disagrees with the refusal, the dispute resolution procedures in the award apply, and can result in the dispute being resolved by the Fair Work Commission.
Who do the changes affect?
Casual conversion clauses will now apply to employees covered by an award in almost every industry, including:
– health, fitness and aged care;
– education;
– hospitality, tourism, travel and transport;
– commercial sales and general retail;
– horticulture and food manufacturing and processing;
– telecommunications; and
– vehicle manufacturing and repair.
Where a workplace has a registered enterprise agreement, the terms of the award will not apply. In that case, employers should check the terms of the agreement (as many agreements also contain casual conversion clauses).
What should employers do?
Employers must give all casual employees covered by an award (not just ‘regular casual employees’) a copy of the casual conversion clause in the award:
– by 1 January 2019 (for staff already employed as at 1 October 2018); and
– within 12 months of starting (for all casual staff engaged after 1 October 2018).
If you do not know whether an employee is covered by an award, or if you have received a request to convert to permanency, and you do not know how to respond, please contact our Nick Steinsvaag.
