Navigating Changes In Employment Law - Part 1: Changes to Casual Employment

23 July 2024

Australian businesses are bracing for significant changes in employment law, with new legislative requirements regarding casual employment set to take effect on 26 August 2024. These changes aim to provide greater job security and benefits for casual workers seeking more stable employment arrangements.

Redefining Casual Employment

Moving away from the current contract-centric approach, the new definition of “casual employee” emphasises the real substance and practical reality of the employment relationship. Under the new provisions of the Fair Work Act 2009 (Cth) (Fair Work Act), an employee will be considered casual only if there is no firm advance commitment to continuing and indefinite work, and the employee receives a casual loading or specific casual rate of pay.

This shift represents a significant departure from the current definition, which was introduced in 2021 following the High Court decision in Workpac v Rossato.

Casual Conversion Rights: New “Employee Choice” Pathway

Another key change is the introduction of an "employee choice" framework for casual conversion. This new pathway replaces the current requirements where employers are obligated to offer permanent employment to eligible casual employees.

Under the new “employee choice” pathway, casual employees who have completed a qualifying period and believe their employment has been ongoing can initiate the conversion process. They must provide written notification to their employer, who then must consult and respond to the notification within 21 days.

Employers can refuse the notification only if:

(a) the employee still meets the requirements of the definition of “casual employee”;

(b) there are fair and reasonable operational grounds for refusing the notification; or

(c) accepting the notification would result in the employer not complying with a recruitment or selection process required by law.

Casual Employment Information Statement

The upcoming amendments to the Fair Work Act also mandate more frequent distribution of the Casual Employment Information Statement (CEIS). In addition to providing the CEIS at the commencement of casual employment, most employers will now need to provide it at 6 months, 12 months, and each subsequent work anniversary. Small businesses have slightly different requirements, needing to provide the CEIS again only at the end of the employee's first year.

Compliance Checklist for Employers

To ensure compliance, employers are advised to:

1. review and update existing casual employment arrangements and contracts;

2. develop and implement new policies and processes, or update current policies and procedures, to facilitate the conversion requests; and

3. clearly communicate these changes to their casual workforce.

By understanding and adapting to these changes, businesses can ensure compliance, enhance employee satisfaction, and position themselves for sustainable growth in an evolving regulatory environment.

For assistance or more information about these changes, please contact our office.  We are ready to help your business navigate and comply with the new requirements.

Disclaimer: This article serves as a general guide only and does not constitute legal advice. The information is current as of the publication date but may be subject to future legislative changes.