The changes to casual employment proposed under the Bill will provide for greater rights for casual employees in respect to ongoing employment, while at the same time attempting to address the uncertainty with recent decisions of the Federal Court regarding casuals who have been found to be entitled to permanent entitlements, and avoiding the consequential risk of underpayments and ‘double dipping’.
(Click here for related articles regarding Workpac v Rossato and Workpac v Skene).
(a) Statutory Definition of Casual Employment
The first major change to casual employment under the Bill will be to introduce a statutory definition of a “casual employee”. Traditionally the definition of a casual employee has been determined by modern awards and case law.
An individual will be considered to be a casual employee if they accept an offer of employment on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person. There will be a number of exhaustive considerations to determine whether the employer makes no firm advance commitment to continuing and indefinite work, including whether the employer can elect to offer work and whether the employee can elect to accept or reject work, if the employment is described as casual and if the employee is entitled to a casual loading.
Whether a person is a casual employee will be assessed on the basis of the offer of employment and the acceptance of that offer – and therefore this determination is time specific. Importantly, any subsequent conduct by either party will no longer be relevant when determining whether an employee is casual, but rather the relevant test is at the commencement of employment. This means that if a casual employee works a regular pattern of hours after the offer and acceptance of employment, this would not in itself lead to satisfaction of the new statutory definition and a finding that they are a permanent employee.
This legal definition of casual employment is aimed at preventing the courts from determining that employees engaged and paid as a casual employee to be permanent based on their work patterns and therefore entitled to permanent entitlements such as paid leave and the like (such as the findings in the recent cases of WorkPac v Rossato and Workpac v Skene).
(b) Statutory Casual Conversion
The Bill also provides for a strengthening of casual conversion rights for casuals employed by the same employer for a period of 12 months, and who has had regular shifts for at least the last six months of the 12 month period.
The right to request casual conversion already exists in many modern awards and enterprise agreements, however under the Bill the right is proposed to be extended to all eligible casual employees at a federal level, and the Bill goes further to require employers to make an offer of casual conversion.
If a casual employee meets the eligibility requirements set out above, their employer must make them a written offer to convert to permanent employment within 21 days after the employee has met the above criteria. However, it is important to note that an employer will not be required to make an offer of casual conversion on reasonable grounds based on facts that are known, or reasonably foreseeable, at the time of deciding not to make the offer. In such circumstances, the employer must issue a notice to the employee explaining why conversion is not being offered.
If an employer does not make an offer for casual conversion or has not otherwise provided reasons why such an offer cannot be made on reasonable business grounds, then an eligible casual employee will have the right to request to convert to permanent employment, which again can only be refused on reasonable business grounds.
The Fair Work Commission (FWC) will also be given the power to deal with a dispute regarding casual conversion through mediation, conciliation or by expressing an opinion, unless there is an alternative dispute resolution mechanism within the relevant industrial instrument or employment contract, but will only be able to arbitrate if the parties agree.
(c) Statutory offset to address ‘Double Dipping’
The Bill also provides that where an employee has been found to be in fact a permanent employee (rather than a casual) and is therefore entitled to paid entitlements commensurate with permanent employment (such as paid annual leave, personal leave and notice, etc), a Court awarding back payments of such entitlements (claim amount) will be able to reduce the claim amount with respect to any amounts already paid in respect to identifiable casual loadings.
This has been referred to as “statutory offset” and is directed at addressing some of the challenges in the recent case of WorkPac v Rossato, in which the Court found that the employer was unable to set-off the casual loading.
However, in order for the statutory offset provisions to apply, the Bill requires that an employer pay the person an “identifiable amount”, which is paid to compensate the person for not having one or more relevant entitlements during the period.
The “identifiable amount” would include a clearly identifiable casual loading as specified in an award, enterprise agreement or employment contract. Importantly, it does not include circumstances where an employee is paid a flat hourly rate and it is not clear from the industrial instrument (award, enterprise agreement or employment contract) that the rate includes a casual loading.
This means that although the proposed Bill provides some protection from the double dipping (i.e. casuals receiving both the casual loading and then paid permanent entitlements), employment contracts will still need to be drafted in a sufficiently clear way to provide for the “identifiable amount”, such as a casual loading, in compensation for the relevant entitlements in order for the statutory offset provisions in the Bill to apply.
Importantly, the statutory offset will also only apply to entitlements that accrue and loading amounts paid on or after the commencement of when the Bill comes into force.