Casual employment – have you completed your assessment of your existing casual employees?

With around 20% of employees in Australia working on a casual basis (according to the Australian Bureau of Statistics), there’s a lot of consternation about recent changes in the law.

What does the new statutory definition of casual employment mean for employers and employees? How does this affect you? Will you need to, or should you convert your casuals to permanents?

These questions stem from the the decision of the High Court in Workpac vs Rosato to reclassify some staff from casual to full-time or part-time employees. In doing so, reclassified staff became entitled to ‘double-dip’ by receiving both a casual loading and their new entitlements as a full-time or part-time employee.

After intense lobbying from the business community, on Friday 26 March 2021, sections of the Fair Work Act relating to casual employees were amended. These changes came into effect on Saturday 27 March 2021. The two key changes were:

  1. A new statutory definition of casual employees
  2. A new national employment standard for casual conversion

To maintain a legal relationship with a casual employee, in the future employers will need to ensure the following:

  1. That their casual employment contracts are clear that there is no firm advance commitment that the work will continue indefinitely with an agreed pattern of work;
  2. That every new casual employee is given a Casual Employment Information Statement (the CEIS) before, or as soon as possible after, they start their new job.Small business employers need to give their existing casual employees a copy of the CEIS as soon as possible after 27 March 2021. Other employers have to give their existing casual employees a copy of the CEIS as soon as possible after 27 September 2021.
  3. That after 12 months of casual employment, they undertake a review to determine if they intend to offer a casual employee a conversion to part-time or full-time work;
  4. That employees have the right to request to be converted from casual to part-time or full-time employment

In the meantime, there are transitional arrangements for employers (other than small business employers) and their existing casual employees (employed before 27 March 2021).

By 27 September 2021, employers (other than small business employers) need to assess whether any of their existing casual employees employed before 27 March 2021, are eligible to be offered to convert to permanent employment.

Within 21 days after completing the assessment, the employer needs to:

  • make a written offer to convert their casual employee to permanent employment, or
  • write to their employee explaining why they won’t be making an offer (this needs to be done no later than 27 September 2021).

If you have questions regarding the new statutory definition of casual employment, please contact our Adelaide or Port Lincoln offices.

Julian Roffe

Practice Manager

Ezra Legal

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