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The key changes are:

• Introduces a definition of a ‘casual employee’ for the purposes of the National Employment Standards (NES);
• Protects employers from ‘double-dipping’ by casual employees who claim an entitlement to annual leave and other entitlements of permanent employment despite having received a casual loading;
• Provide casual employees with the right to convert to permanent employment in certain circumstances; and
• Requires employers to give a casual employee a copy of the ‘Casual Employment Information Statement’ available from the Fair Work Ombudsman.

Definition of a ‘casual employee’

A ‘casual employee’ is an employee who accepts an offer of employment on the basis that there is no firm advance commitment to continuing and indefinite work according to an agreed pattern of work (our emphasis).

To determine whether, at the time the offer was made, there was ‘no firm advance commitment’ only the following factors can be considered:

• whether the employer can elect to offer work and whether the person can elect to accept or reject the work;
• whether the person will work as required according to the needs of the employer;
• whether the employment is described as casual employment; and
• 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 fair work instrument.

Importantly, the amendments clarify that:

• a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work; and
• the question of whether a person is a casual employee is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct by either party; and
• a person who commences as a result of acceptance of an offer of employment as set out above, remains a casual employee until the employee’s employment is converted to full-time or part-time employment or the employee is offered and accepts an alternative offer of employment.

Protection against double-dipping claims by a casual employee

The amendments provide protection to employers against ‘double-dipping’ by employees and former employees who were engaged as casuals and paid as casuals, but later claim an entitlement to annual leave and other permanent employment benefits.

The amendments do this by allowing a claim by an employee to be reduced by an amount equal to the casual loading amount paid by the employer.

Right to casual conversion

The amendments require employers (other than small business employers) to make an offer to convert a casual employee to full-time or part-time employment if the employee:

• has been employed for at least 12 months; and
• during at least the last 6 months of that period, the employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, could continue to be worked as a full-time or part-time employee (as the case may be).

The exception is where:

• there are reasonable grounds for the employer not to make the offer; and
• the reasonable grounds are based on facts that are known, or reasonably foreseeable, at the time of deciding not to make the offer.

The offer to convert must be in writing from the employer and given to the employee within 21 days after the end of the 12-month period.

Employers have a 6-month transition period (transition period) to make offers of conversion to all casual employees who started their employment before the start of the amendments, unless the employer has reasonable grounds not to.

A casual employee will also have a ‘residual right to request casual conversion’ if the employee has been employed for at least 12 months and has not refused an employer offer of casual conversion within the previous 6 months.

Casual Employment Information Statement

An employer must give each new casual employee the Casual Employment Information Statement (Statement) before, or as soon as practicable after, the employee starts employment as a casual employee.

An employer must give each casual employee who started their employment before the commencement of the amendments (i.e. prior to 27 March 2021) the Statement as soon as practicable after the end of the transition period.  An employer can choose to give the Statement at an earlier time.

The Statement is available from the Fair Work Ombudsman website (https://www.fairwork.gov.au/employee-entitlements/national-employment-standards/casual-employment-information-statement).  (Note that new casual employees must also be given the Fair Work Information Statement.)

If you have any queries regarding the above update, please contact Workplace Legal on 03 9972 4950