As detailed in our previous article, the law has recently (significantly) changed regarding casual employment. In particular, there are new obligations to offer certain casual employees “conversion” to permanent employment.
For employers with 15 or more employees, there were mandatory steps that had to be taken before 27 September 2021 to assess which employees were eligible for conversion to permanent employment and to notify them accordingly.
From 27 September 2021 different obligations now apply, as explained further below, including that casual conversion obligation for small businesses are now in force.
There are also separate obligations to provide all casual employees with a Casual Employment Information Statement.
We also recently held a webinar on the new laws affecting casual employees, which can be accessed through the following link.
Casual Conversion: Employers with 15 or more employees
One of the most important new obligations on employers concerns “converting” certain casual employees to permanent (full-time or part-time) employment.
Generally, casual employees will be eligible to convert if they have been employed for at least 12 months and in at least the last 6 months they have worked for a regular pattern of hours.
From 27 September 2021 onwards, non-small business employers (those with 15 or more employees) must offer casual employees the opportunity to convert to permanent employment within 21 days of the employee’s first anniversary of employment if for at least the last 6 months they have been working a regular pattern of work.
There are exceptions to this rule where there are reasonable grounds for not making the offer (for example, the employer knows that the operational requirements of the business will change in the near future and so the employee cannot continue to work their regular pattern of hours).
If an employee is not going to be offered casual conversion, the employer is under an obligation to provide written notice to the employee of this fact, within 21 days of their first anniversary of employment.
Practically speaking, it is very important therefore for an employer to diarise when an employee will reach 12 months of employment so that the employer can assess their eligibility to convert and to provide the appropriate written notice of whether or not they will be offered a permanent position within 21 days of their anniversary.
If an employee is not offered conversion at this point, an employee is able to request to again be assessed for eligibility to convert at a later date. Generally, an employee will have to wait for 6 months since the date the employer last informed them they were not eligible or refused a previous request to convert. But subject to these rules, they can request to be considered for conversion as many times as they want.
Again, the criteria for being made permanent will be whether they have been working a regular pattern of hours for the last six months and whether there are any reasonable grounds for not making their position permanent. Rules about providing employees written notice of the employer’s decision will again apply.
We have produced a free guide on the conversion process, which includes a flowchart of the steps to take when dealing with casual conversion. Employment Innovations’ clients with HR Essentials or HR Partner subscriptions also have access to template casual conversion letters as part of their subscription.
Casual Conversion: Employers with less than 15 employees
For small business employers (those with less than 15 employees) there is no obligation to proactively offer conversion. Rather, an employer is under an obligation to consider any requests for a casual employee to convert they receive.
This new law comes into effect on 27 September 2021.
Where an employee has been employed for at least 12 months, and in the last 6 months have been working a regular pattern of hours, then employers will be obliged to agree to a request to convert to permanent employment unless there are reasonable grounds not to do so (eg employer knows that the operational requirements of the business will change in the near future and so the employee cannot continue to work their regular pattern of hours).
Generally, employees will be able to make the request to convert at any point after they have been employed for 12 months and can make further requests to convert (if not initially successful) after waiting for a further 6 months. There are obligations to respond to employees’ requests in writing within set time limits.
This is all explained further in our free guide on the conversion process, which includes handy flowcharts to take you through your obligations step by step. As above, Employment Innovations’ clients with HR Essentials or HR Partner subscriptions also have access to template casual conversion letters as part of their subscription.
There are separate obligations than will apply to non-small business employers from 27 September 2012 onwards regarding offering conversion to casual employees who have been employed for 12 months, with at least 6 months on a regular basis.
Casual Employment Information Statement
Non-small business employers have a separate obligation to provide all existing casual employees with a copy of the Casual Employment Information Statement as soon as they can after 27 September 2021 (small business employers should have done this already, as soon as possible after the 27 March 2021).
For any new casual employees hired in the future, all employers (regardless of size) must provide the Casual Employment Information Statement (as well as the usual Fair Work Information Statement) at the commencement of their employment.
Casual Employment Contracts
Aside from the matters set out above, it is important that contracts of employment for casual employees now take account of the new statutory definition of casual employment and have wording to take advantage of the new rules preventing casual employees “double-dipping” on entitlements if they are later found to be a permanent employee.
HR Essentials and HR Partner clients have access to casual employment contracts updated to take account of these changes.
About Employment Innovations
Employment Innovations is one of Australia’s leading providers of employment services designed to increase productivity and ensure compliance. Its services and solutions include all the tools that every Australian small to medium sized employer needs – including workplace advice, legal services, payroll solutions, migration, human resource management and HR software. If you require any assistance with this process, or to access the template letters you will be required to issue employees, please contact Employment Innovations.
The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact Employment Innovations for advice.
This article was originally published on 14 May 2021; updates have since been made following the advice of State & Federal government authorities, changes to legislation, and/or changes to Employment Innovations’ products & services. Last updated 29 September 2021.