Last month the Coalition government introduced the Fair Work Amendment (Right to Request Casual Conversion) Bill 2019 (Bill) into the House of Representatives. The Bill seeks to amend the Fair Work Act 2009 (Cth) to insert into the National Employment Standards a new right for eligible casual employees to convert to full-time or part-time employment.
It follows a decision in July last year by the Fair Work Commission which led to the insertion of a casual conversion clause into 85 Modern Awards. The object of the Bill is to ensure that all eligible employees will have access to a right to request casual conversion, including employees that are not covered by a Modern Award or an Enterprise Agreement.
The Bill provides that casual employees may make a request to their employer in writing to convert to full-time or part-time employment if the employee:
The term ‘regular pattern of hours’ is not defined. The Explanatory Memorandum gives the example of where an employee has worked eight hour shifts every Monday and Tuesday for a 12 month period, it will be clear that they have worked a regular pattern of hours. However, there may still be a regular pattern of hours even with slight fluctuations in the specific times and days worked.
The Bill provides that an employer must give a written response to an employee’s request for casual conversion within 21 days after the request is made, stating whether the employer grants or refuses the request.
An employer must not refuse a request for casual conversion unless they have consulted the employee and there are reasonable business grounds to refuse the request. The reasonable grounds must be based on facts that are known, or are reasonably foreseeable, at the time of refusing the request. The Bill provides the following examples of what constitutes reasonable business grounds for refusing a casual conversion request:
There may be other reasonable grounds for refusing a request, including grounds that are specific to the particular workplace or the employee’s role. Whether a ground is reasonable is to be assessed by taking into account all of the circumstances, including the needs of the employer’s business and the nature of the employee’s role.
The consultation requirement under the Bill will allow employers and employees to discuss matters relating to the request, including reasons for a proposed refusal or alternative arrangements that suit the needs of both the employer and employee. The Explanatory Memorandum gives the example of where an employer may not be able to offer an ongoing full-time position due to a foreseeable reduction in workload after six months, the employer may refuse the request, but separately propose a full-time contract on a six month fixed-term basis.
If an employer grants an employee’s request for casual conversion, they must, within a reasonable period after the request is made, provide the employee written notice of:
Not just yet. The Bill has been referred to the Education and Employment Legislation Committee for inquiry and report by 26 March 2019. We will provide an update on the effective date of the new casual conversion laws, if the Bill is passed through Parliament.
If you would like more information about the proposed casual conversion laws and how they will affect your business, please contact us as we would be happy to assist.
This article was written by Sam McIvor, Partner and Callum Gribbin, Solicitor
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