The transitional period for changes introduced in March 2021 to casual employment terms in Australia end today, 27 September.

Employers must have assessed whether any of their existing casual employees employed before 27 March 2021 are eligible and have been offered conversion to permanent employment by today.

The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (“the Amendments Act”) introduced a requirement for employers (other than small business employers) to make an offer to casual employees to convert to full-time or part-time employment, as well as a right for casual employees to request to convert to permanent employment, if the following conditions are satisfied:

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

For employment purposes, Fair Work Australia defines a small business as one that has less than 15 employees.

Casual contracts in Australia have no set commitment from employers on the amount of work offered or the duration of employment. The Amendment Act introduced a statutory definition of casual employment in light of the decision of the Federal Court in Workpac Pty Ltd v Rossato which has since been overturned by the High Court. The Amendment Act also introduced provisions dealing with the confusion over “double dipping” which arose in the Workpac case. The provisions allow a court to offset casual loading payments made to an employee to compensate the worker for certain entitlements that they would not be eligible for, as a casual employee.

According to the Fair Work Ombudsman, for employers offering casual conversion, they will need to make a written offer to convert their casual employee to permanent employment within 21 days after the employee’s 12-month anniversary. For existing casual employees, the employer should have made a written offer to convert their casual employee to permanent employment (this must be done within 21 days after making the assessment), or write to their employee explaining why they won’t be making an offer within 21 days of making the assessment but by no later than 27 September 2021. The only reasons for not making an offer are: the employee hasn’t worked a regular pattern of hours, and if the business has reasonable grounds for not making an offer.

For employees responding to an offer to convert, they will need to respond to their employer in writing within 21 days after getting the offer. If they do not respond, their employer can assume that they’ve declined the offer.

An eligible casual employee (except if they are employed by a small business employer) can make a request to convert to permanent employment from 21 days after their 12-month anniversary. An eligible casual employee who works for a small business employer can make a request at any time on or after their 12-month anniversary.

Casual employees who believe they’re eligible to become a permanent employee can make a request for conversion every six months.

The Fair Work Commission also announced today it has been reviewing casual employment terms in most awards. The Commission’s changes make sure that awards are consistent with the changes to casual employment under the Fair Work Act that started in March 2021. The changes are different from award to award.

“These changes to casual employment provide clarity as to the rights of casual employees and obligations of employers and will remove some of the risk for labour hire providers who employ casual workers, said Fiona Coombe, SIA’s Director of Legal and Regulatory Research.

Staffing Industry Analysts recently published its report ‘Contingent Workforce Regulatory Environment in Australia’ which covers diverse information on Australia’s laws and regulations affecting the workforce solutions industry including temporary work restrictions, the legality of different staffing supply models and business considerations such as workers’ rights and employers’ statutory costs.