Be Prepared: Changes to Casual Employment Likely

Highlighted very recently in the media is a case brought to the Fair Work Commission (FWC) by the Australian Council of Trade Unions (ACTU) to increase the hours of casual employees to part time or full-time hours, effectively facilitating a conversion from casual employment to part time or full-time employment.

In its initial decision, which has not yet come into effect, the FWC has agreed in principal for there to be a clause added into 85 modern Awards making provision for such a conversion subject to the following conditions which it deems as a "model clause" for awards:

  1. a qualifying period of 12 calendar months;

  2. a qualifying criterion that the casual employee has over the qualifying period worked a pattern of hours on an ongoing basis which, without significant adjustment, could continue to be performed in accordance with the full-time or part-time employment provisions of the relevant award;

  3. the employer must provide all casual employees (whether they become eligible for conversion or not) with a copy of the casual conversion clause within the first 12 months after their initial engagement; and

  4. a conversion may be refused on the grounds that it would require a significant adjustment to the casual employee's hours of work to accommodate them in full-time or part-time employment in accordance with the terms of the applicable modern award, or it is known or reasonably foreseeable that the casual employee's position will cease to exist, or the employee's hours of work will significantly change or be reduced within the next 12 months, or on other reasonable grounds based on facts which are known or reasonably foreseeable.[1]

Various other proposals were submitted by the ACTU and employer associations some of which the FWC rejected and some it accepted. Probably the most Important one rejected by the FWC was the proposal to increase minimum hours engagement of casual employees from two to four hours. The FWC has agreed to increase minimum engagements from two to three hours for a few select awards it considers requires special circumstances but otherwise has left the minimum engagement at two hours.

The FWC has given all parties time to lodge further submissions for consideration, potentially including alternative "model clauses", before the changes are finalised and adopted into the 85 modern awards.

The FWC has also considered specific circumstances of a limited number of modern awards such as those covering the hospitality and clubs sector and has requested further submissions from associations representing those industries.

Further details will be communicated as they come to hand. In the interim, call us if you need support.

[1] Source: Fair Work Commission – 4 yearly review of modern awards – Casual employment and Part-time employment – Summary of Decision 5th July 2017
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