ByLawyers News and Updates

Casual employment – FED

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Recent amendments to the Fair Work Act

There is a new statutory definition of ‘casual employee’ from 27 March 2021. There is also an expanded statutory pathway for regular casual employees to convert their employment status to full time. Employers now have an obligation to offer permanent employment in certain circumstances.

Some relief has been granted to employers for underpayment claims from employees incorrectly classified as casual. This addresses instances of ‘double dipping’.

The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 has introduced significant amendments to the Fair Work Act 2009 including:

Statutory definition

Section 15A provides that a person is a casual employee if they have been offered and have accepted employment on the basis that the employer gave ‘no firm advance commitment to continuing and indefinite work according to an agreed pattern…’.

Conversion to permanent employment

Additionally, for casual employees who fall outside the modern award framework there is a statutory obligation for employers to offer conversion to full or part-time employment, unless there are reasonable business grounds not to do so. This does not apply to small business employers.

Casual Employment Information Statement

Employers must provide casual employees with a Casual Employment Information Statement, before, or as soon as practicable after, they start their employment. This is additional to the Fair Work Information Statement.

Off-setting casual loading to prevent ‘double-dipping’

Employers are provided with relief for underpayment claims from employees incorrectly classified as casual.

Regular casual employee

The previous definition of ‘long term casual’ is replaced with ‘regular casual employee’. The definition relates to the element of employment on a regular and systematic basis, but without any specific time requirement.

By Lawyers keeps you up to date

For further details see the By Lawyers Employment Law publication which has been updated accordingly.

Employment law updates – FED

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The By Lawyers Employment Law publication has been reviewed by our author, experienced solicitor Brad Petley, an accredited specialist in workplace relations, so you can be confident our content is up to date.

Important employment law updates and enhancements have been made to the commentary, including:

Offsetting rules for casual loading payments

The WorkPac Pty Ltd v Skene [2018] FCAFC 131 decision concerning casual loading led to the Commonwealth government amending the Fair Work Regulations. Regulation 2.03A of the Fair Work Regulations 2009 (Cth) provides that, in certain circumstances, employers may offset an employee’s casual loading payments against the employee’s entitlements under the National Employment Standards (NES).

Casual conversion

Casual conversion generally refers to the right of an employee who has been employed on a regular and systematic basis for a period of 6 months or 12 months, depending on the modern award that applies, to convert their employment from a casual basis to permanent full time or part time. This right is not currently in all modern awards and therefore does not apply to all casual workers. That position may change after the federal election, so By Lawyers will continue to monitor the position and update the commentary again if required.

Flexible working arrangements

All modern awards include a model term that facilitates flexible working arrangements. The model term imposes additional obligations on employers, in addition to those in the NES, in relation to managing and responding to flexible working requests.

Annual leave

Under the NES, annual leave is calculated at the employee’s base rate of pay for their ordinary hours of work. Unless an applicable award, enterprise agreement or contract of employment provides otherwise, annual leave does not include any overtime rates, penalties or other allowances that an employee would have been paid if they had worked during that period.

Unpaid family and domestic violence leave

All full-time, part-time and casual employees are entitled to five days unpaid family and domestic violence leave. This applies for each 12-month period of service. The leave does not accumulate.  The notice and evidence requirements of s 107 of the Fair Work Act 2009 apply. The commentary discusses these requirements.

Workplace bullying

Reasonable management action carried out in a reasonable manner is not considered workplace bullying. The commentary provides a relevant link to s 789FD(2) of the Fair Work Act.

Modern slavery laws

Modern slavery describes human trafficking, slavery and slavery-like practices, like forced labour and forced marriage.

The Modern Slavery Act 2018 (Cth) requires Australian entities and foreign entities carrying on business within Australia with consolidated revenue of $100M, to submit Modern Slavery Statements every 12 months. This needs to include an entity’s structure, operations and supply chains as well as the potential modern slavery risks, plus actions taken to address those risks including due diligence and remediation processes.

By Lawyers keeps you up to date

Because we are committed to keeping our content up to date, employment law updates are provided at least annually and whenever there are significant developments in the area. Our authors and editorial team constantly monitor all of our publications.

By Lawyers keeps you up to date!

101 Employment Answers – commentary added

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By Lawyers Reference Manual – 101 Employment Answers has been enhanced with the addition of commentary regarding Unfair dismissal – period of continuous employment and Casual Employment.

An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee: see s 384(1).

Under s 384(2), a ‘period of service’ as a casual employee does not count towards the employee’s period of employment unless:

  • the casual employee was employed on a regular and systematic basis; and
  • the casual employee had a reasonable expectation of continuing employment on a regular and systematic basis.

The Full Bench decision of the Fair Work Commission in Shortland v Smiths Snackfood Co Ltd (2010) 198 IR 237 (particularly paragraphs 10 to 13) provides guidance as to the approach to take for calculating a ‘period of service’ as a casual employee.

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