Are casual employees entitled to a permanent role?

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A recent decision of the Fair Work Commission (FWC) as part of the 4 yearly review of modern awards will see casual conversion provisions added to modern awards from 1st October 2018.

What is the decision?

Casual conversion provisions are being added to modern awards from 1st October 2018.

This decision will impact employers who provide casual employees with regular and systematic hours, as employers may be required to convert their casual employees into permanent roles.

Presently casual employees are not required to receive any commitment from an employer regarding how long they will be employed for, or the days and hours they will work.

Employers who make advance commitments and provide regular shift patterns to their casual employees for extended periods of time are risking their ability to maintain a casual workforce.

What does this mean for Employers?

Effective 1st October 2018, employers will be required to provide all casual employees with a copy of the provisions contained in the relevant Award by 1st January 2019. Casual employees commencing on or after 1st October 2018 will need to receive a copy of the provisions within the first 12 months after their first working day with the employer.

Employers who engage casual employees to perform regular patterns of work on an ongoing basis must consider requests from casual employees to convert their employment status.  Employees can make a conversion request after 12 months, and there are limited grounds on which an employer can refuse a request.

What you need to do as an Employer

Employers who engage casual employees should ensure they follow the guidelines below:

  • Read the provisions in the awards when published on 1st October 2018
  • Ensure all employee requests to convert from casual to part time or full-time employment are made in writing.
  • Respond to employee casual conversion requests in writing within 21 days.
  • Document all instances where:
    • Employees are provided with a copy of the provisions;
    • Regular casual employees elect not to convert;
    • Casual employees request to convert;
    • You respond to casual employee requests to convert.
  • Ensure all casual employees commencing on or after 1st October 2018 are provided with a copy of the provisions within first 12 months employment.
  • Provide all existing casual employees with a copy of the provisions before 1st January 2019.

Frequently Asked Questions

To further assist employers, answers have been provided to the most frequently asked questions employers have regarding the upcoming changes to casual provisions:

A casual employee doesn’t want to move into a permanent role, do they have to do this?

No, casual employees don’t have to convert their employment if they don’t want to.

I offered a casual employee a permanent role and they refused, can I force them to take the role?

No, employers are not permitted to convert a casual employee to a permanent role without their agreement.

A casual employee has been working full time hours for 12 months, can I reduce their hours to avoid them making a conversion request?

No, employers may be at risk of an adverse action claim if they reduce working hours to avoid their obligations with casual employee conversion requests.

A casual employee has worked with us for 12 months, but only started a regular pattern of hours in the last 3 months. Can they request to convert?

No, only regular casual employees who have worked a pattern of hours in the preceding 12 month period can request to convert.

What is considered reasonable grounds for refusing an employee request?

Employers can refuse an employee request if it would require significant adjustment to the employee’s hours to accommodate the request. Employers can also refuse on reasonable business grounds including knowing or having reasonable foreseeability that the casual employees’ hours of work will significantly decrease, or that their position will cease to exist within 12 months.

What if an employee converts to a permanent role and then requests to return to a casual role?

Employees who requested permanent employment that are wanting to revert to casual employment may only do so with the written agreement of the employer.

I have approved a casual employee’s request to convert to a permanent role, do I need to issue a new employment contract?

Yes, a new contract should be issued and have an effective date aligning with the employer’s next pay cycle.

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