As we reported in our previous article, The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (“the Amendments Act”) defined  a casual worker as someone offered to work without commitment of continuation and indefinite work.

The Bill sheds light on the possibility to convert the casual work contract into a long-term or part-time employment relationship.

The National Employment Standards (NES) provides casual employees with a pathway to become a permanent employee. This is also known as ‘casual conversion’.

Employers (other than small business employers) have to make an offer to casual employees to convert to full-time or part-time employment, as well as casual employees have the right to request permanent employment, if the following conditions are satisfied:

• the casual employee has been employed by the employer for 12 months;
• they have worked a regular pattern of hours consecutively for at least the last 6 months;
• they could continue working these hours as a full-time or part-time employee without significant adjustment.

Even if these criteria are met, employers may still decline to make an offer of permanent employment if there are reasonable grounds (it is reasonably foreseeable that in the next 12 months, the casual employee will no longer have a job, the hours will be significantly reduced, or the hours of work will be significantly varied and cannot be accommodated within the employee's availability). Reasonable grounds can also include noncompliance with a recruitment or selection process required by or under a Commonwealth, State or Territory law.

If a worker is eligible, the employer must make an offer in writing to convert his/her casual employment to part-time or full-time employment. This offer must be made within 21 days of the assessment, and employees must respond to this offer within 21 days of receiving it. If he/she does not respond, his/her employer can assume that he/she has declined the offer.

If a worker is not eligible, the employer must still inform the employee, of the reasons behind not granting an offer. This has to be done within 21 days of making the assessment, but by no later than 27 September 2021.

The deadline of 27 September 2021, was only the first step in the casual conversion process: employers will have ongoing responsibilities to complete similar assessments for all casual employees as they reach their 12-month service mark.

Following that initial assessment, casual employees have the right to request to be considered for casual conversion every six months.

An employer cannot reduce or change an employee’s hours of work, or terminate their employment, to avoid having to offer or accept a request for casual conversion. For example, an employer cannot deliberately change their employee’s roster, so they do not meet the eligibility requirements.

Casual employees are also protected against adverse action by an employer because they have a workplace right to convert to permanent employment.

It is important to stress, that employers are now required to provide casual employees with a copy of the new Casual Employment Information Statement (CEIS). This statement includes information about the new definition of ‘casual employee’, conversion to permanent employment and how to resolve conversion disputes.  Dates for providing the CEIS depend on when the casual employee began employment and if the employer is a small business employer.

These changes, indeed, impact small business employers, (with a headcount of less than 15 employees) differently: they do not have a positive obligation to offer casual conversion and they were required to have provided existing casual employees with a copy of the CEIS as soon as possible after 27 March 2021.