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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.

Unpaid parental leave – FED

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Unpaid parental leave entitlements have been enhanced by the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020.

These amendments provide greater support to parents who experience stillbirth, infant death, premature birth and the hospitalisation of their baby immediately following birth.

The amendments ensure the following:

  • Employees who are parents of stillborn babies or parents of babies or infants that die have the same entitlement to leave as parents of babies that survive;
  • Following a stillbirth or the death of an infant or child, the employee parent’s unpaid leave can only be cancelled by the employee;
  • Employees who are parents of premature babies and newborns that require hospitalisation after birth can put their unpaid parental leave on hold during the hospitalisation; and
  • Employees cannot also take compassionate leave unless it is following the stillbirth or the death of the child.

Employees may choose to access flexible unpaid leave options in the first 24 months after the child’s actual or expected date of birth or placement, for example, to enable a gradual return to work or shared caring responsibilities between parents.

The commentary in the By Lawyers Employment Law publication has been updated accordingly.

JobKeeper scheme – FED

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Details of the Federal government’s JobKeeper scheme have been added to By Lawyers Dealing with COVID-19 legal issues – Some practical information publication.

JobKeeper payment stimulus package

The purpose of the JobKeeper package is to assist employers to retain their employees and improve the viability of businesses during the COVID-19 pandemic.

Under the scheme, employers will receive $1,500 per employee fortnightly. Employees must be paid a minimum of $1,500 fortnightly before tax. The JobKeeper payment will be available from 30 March 2020 until 27 September 2020.

Employers pay their employees as usual and then get reimbursed by the ATO, monthly in arrears.

The new commentary covers the important aspects of the scheme. These include the eligibility criteria for both employers and employees. There are also answers to frequently asked questions.

A link is provided to the ATO website which sets out how to Enrol for the JobKeeper payment.

New powers for employers under the JobKeeper scheme

The Federal parliament has complemented the JobKeeper scheme by giving new powers to employers covered by the scheme. The Fair Work Act has been amended by the insertion of Part 6-4C that allows an employer to temporarily modify employment terms and conditions, if they are eligible for the JobKeeper scheme. This is referred to as an employer giving a ‘JobKeeper enabling direction’ to a particular employee.

The new powers include options for workforce flexibility and reducing workforce costs. This gives eligible employers the ability to stand down employees or reduce their hours, change the duties they perform, or change their location of work. The amendments also allow an eligible employer to make an agreement with an employee about work days or times, as well as the employee taking annual leave, including at half pay.

Before a JobKeeper direction can be given, employers must meet minimum requirements. For example, employers need to satisfy consultation requirements which includes notifying the employee at least three days before making a JobKeeper enabling direction, or a lesser time by agreement. No forms have been prescribed for this purpose. By Lawyers has provided example content letters, which are available from within the commentary.

These amendments enable the Fair Work Commission to conciliate and arbitrate disputes about a JobKeeper direction or request.

For more information about the JobKeeper scheme refer to Dealing with COVID-19 legal issues – Some practical information, which is available in all By Lawyers guides.

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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