Fair Work is updating the definition of a casual employee (not to casual Friday clothing or just being too relaxed at work!), this will take effect from Monday 26th August 2024. Casual Employment Information Statement and casual conversion rules will also be updated.
FairWork says:
A new definition of ‘casual employee’ will be introduced to the Fair Work Act. Under this definition, a person is a casual employee if, when they start employment:
- the employment relationship has no firm advance commitment to ongoing work, taking into account a number of factors, and
- they’re entitled to a casual loading or specific casual pay rate under an award, registered agreement, or employment contract.
Employees classified as casual who were with their employer before 26 August 2024 will stay casual under the current definition unless they move to permanent employment.
Changing from casual to full-time or part-time employment (casual conversion)
A casual will be able to provide written notice to their employer to change to permanent employment under the employee choice pathway if they:
- have been employed for at least 6 months (12 months if employed by a small business)
- believe they no longer meet the requirements of the casual employee definition.
A casual can’t provide notice if they:
- are engaged in an ongoing dispute with their employer about changing to permanent employment under the employee choice pathway, or
- in the previous 6 months, their employer refused a previous notice or they’ve resolved a dispute with their employer about employee choice under a relevant dispute resolution process.
The Casual Employment Information Statement (CEIS) is a document with information about employment conditions that an employer must provide to all casual employees.
A CEIS must be provided to new casual employees before, or as soon as possible after, they have started employment.
It must also now be provided to casual employees at the following times during the employment relationship:
- for small business employers – after 12 months of employment
- for other employers – after 6 and 12 months of employment, and then after every 12 months of employment.
Employers need to give casual employees the version of the CEIS that is in place at the time they have to issue the CEIS.
Firm advance commitment
Whether there is a firm advance commitment needs to be assessed on:
- the real substance, practical reality and true nature of the employment relationship
- several other factors.
The other factors that must be considered include whether:
- the employer can offer or not offer work to the employee (and whether this is happening)
- the employee can accept or reject work (and whether this is happening)
- it’s reasonably likely there will be future work available of the kind the employee usually performs in the employer’s business, based on the nature of the business
- there are full-time or part-time employees performing the same kind of work in the employer’s business as the work the employee usually performs
- the employee has a regular pattern of work even if it changes over time due to, for example, reasonable absences because of illness, injury or other leave.
The above isn’t a full list and other factors may apply.
For this assessment, not all factors need to be satisfied and a single factor won’t determine whether a person can be considered a casual or not.
For example, a regular pattern of work on its own doesn’t indicate that an employee has a firm advance commitment to ongoing work. An employee who has a regular pattern of work may still be a casual employee if there is no firm advance commitment to ongoing work.
When assessing whether there is a firm advance commitment, you can look at:
- the contract of employment, or
- the contract as well as any mutual understanding or expectation between the employer and employee that isn’t part of the contract.
The mutual understanding or expectation can be worked out from how the contract is performed, or what the employer and employee do after entering into the contract.
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Details and links: https://www.fairwork.gov.au/about-us/workplace-laws/legislation-changes/closing-loopholes/casual-employment-changes
