The Bill seeks to amend the definition of a “casual employee” in the FW Act which was inserted by the previous Morrison Government to address a rise in cases of casual employees asserting they were in fact permanent employees, and seeking compensation and/or back pay as a result, including the Workpac v Rossato decision of the High Court (see our article here for more information).
Whilst it will retain the established concept – that is, someone who has no firm advance commitment to continuing and indefinite work is a casual employee– the amended definition would require parties to consider the ‘real substance’ and ‘practical reality’ of the employment relationship (and not just the terms of their employment contract).
Whether there is “no firm advance commitment” will be determined by looking at the employment relationship and specifically:
- the ability and actual practice of offering and accepting work;
- whether continuing work is reasonably likely given the nature of the business;
- whether part time or full time employees are undertaking similar roles;
- whether the employee has a regular pattern of work.
This change could have significant impacts for employers who engage casuals on a regular basis, and will create uncertainty and risk for employers, potentially resulting in fewer casuals being employed.
Additionally, casual employees who have worked for 6 months (or 12 months in a small business) will be able to notify their employers if they think their working relationship has changed and if they believe they no longer meet the definition of a “casual” employee. The employer will then be required to consider the casual employee’s employment status and whether this should be converted to a permanent role.
This “employee choice pathway” would sit alongside the existing casual conversion pathways currently in the National Employment Standards whereby employees are to be assessed for casual conversion once they have completed 12 months of service.
The Casual Employment Information Statement (which employers are required to provide to new casual employees at the commencement of their employment) will be updated, and employers will now be required to provide the Statement again after 12 months of employment to remind casual employees of their rights.
These changes appear to place a significant burden on employers who will be required to constantly assess, review and communicate with casual employees as to their rights to conversion, even where employees may not wish to do so.