After much debate in the Senate, the Federal Government’s Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 (‘the Bill’) passed through Parliament in a significantly reduced form on 18 March 2021.

While the Federal Government’s more broader reforms were rejected, the casual employment provisions survived. The Bill was assented to on 26 March 2021. Consequently, the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) has introduced into the Fair Work Act 2009 (Cth) (‘Act’) the following concepts:

A definition of ‘Casual Employee’

The new statutory definition of ‘casual employee’ places great importance on the initial offer of employment made to a casual employee. Specifically, that the employer makes (or made) the offer with no firm advance commitment to continuing and indefinite work according to an agreed pattern of work.  The employee must also accept the employer’s offer on that basis, and any subsequent conduct of the employer or employee is not determinative as to whether an employee is a casual employee.

Prevention of “Double Dipping” Claims

The amendments to the Act regarding casual employees will attempt to better protect employers from “double-dipping” claims by casuals where the casual employee has identifiably received a casual loading.  The new provisions state that where a casual employee makes a claim for permanent entitlements, a court must reduce any amount payable by the employer, by the identifiable casual loading amount that was paid to the casual employee during the employment.

Employee Request – Casual Conversion

All employees, regardless of whether the employer is a small business (a business with less than 15 employees) or not, will have a right to request casual conversion.  An employer after consultation with the employee, may refuse a conversion request on reasonable grounds (as defined by the Act).

Employer Offer – Casual Conversion

The Act now contains an obligation for an employer (which is not a small business employer) to offer a casual employee who has been employed by the employer for a period of 12 months, and who has worked a regular pattern of hours for the last 6 months of that 12 month period, the opportunity to convert to permanent employment.  The employer’s offer must be consistent with the regular pattern of hours worked by the employee. An employer may avoid making a casual conversion offer on reasonable grounds, as defined by the Act.

Casual Employment Information Statement (CEIS)

Employers are now required to provide the CEIS to all casual employees at the commencement of employment.

Keep an eye out for Aitken Legal’s April Employment Update that will explain these new provisions in greater detail.  In the meantime, if you have any questions about these changes, please contact one of our experienced employment lawyers.