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Further protections for casual workers

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.

When can an employee make a request for casual conversion?

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:

  • is designated as a casual employee by their employer for the purposes of any fair work instrument that applies to them (e.g. Modern Award or Enterprise Agreement), or their contract of employment; and
  • has, in the 12 months before giving the request to their employer, worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time or part-time 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.

What do employers need to do when they receive a request for casual conversion?

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:

  • granting the request would require a significant adjustment to the employee’s hours of work in order for the employee to be engaged as a full-time or part-time employee;
  • the employee’s position will cease to exist within 12 months after giving the request;
  • the hours of work which the employee is required to perform will be significantly reduced within 12 months after giving the request;
  • there will be a significant change in the days on which and/or the times at which the employees hours of work are required to be performed within 12 months after giving the 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.

How do employers grant a request for casual conversion?

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:

  • whether the employee is converting to full-time or part-time employment;
  • the employee’s hours of work after the conversion takes effect; and
  • the day the employee’s conversion to full-time or part-time employment takes effect.

When will the new laws come into effect?

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

"The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication."