Employment Update – Casual Employment and the end of JobKeeper

JobKeeper

JobKeeper ceased on March 28th 2021 and the government has not announced any plans to continue it in any form.

This means:
 No payments will be made under the scheme from Sunday 28th March 2021
 All JobKeeper enabled directions and agreements will cease to have effect as of Sunday 28th March 2021. This means:
 Any employees currently stood down or on altered working arrangements through JobKeeper enabled directions must have their employment conditions returned to normal

Employer Options

 Enter in to individual informal agreements with employees to reduce hours or change duties for a period of time (provided it is lawful)
 Redundancies/downsizing
 Employers can use the standard ‘stand down’ provisions in s524 the Act if:

  • There is a definite stoppage of work for a set period of time (slowdowns do not apply)
  • The stoppage of work is out of the employer’s control
  • The employee cannot be ‘usefully employed’ during that period; and
  • The employee’s contract, Award or EA does not prohibit the stand down.

Employer Law Update

Amended legislation has recently been passed that will make changes to the Fair Work Act 2009 (Cth) to include
changes governing casual employment.

  • A majority of the ‘omnibus’ bill has been rejected/removed at this stage
  • A definition of ‘casual employment’ will now be included in the Act
  • A requirement to offer conversion for casual employees now exists
  • A new ‘Casual Employee Information Statement’ must be issued to all new casual employees upon commencement
  • The amended act now clarifies that employers can offset entitlements against the casual loading paid to them in the event of an incorrect classification.

Defining Casual Employment

The considerations for determining whether a firm advance commitment to continuing and indefinite
work exists include:

  • whether the employer can elect to offer work and whether the employee can elect to accept or reject work
  • whether the employee will work as required according to the needs of the employer
  • whether the employment is described as casual employment
  • whether the employee will be entitled to a casual loading or a specific rate of pay for casual employees
    under the terms of the offer or fair work.

Casual Conversion

Employers (other than small business employers with <15 employees) must offer to convert a casual employee to permanent employment if the employee:
1. has been employed for 12 months, and
2. during the last six months, has worked a regular and systematic pattern of hours without significant adjustment.

The offer to convert must be to either full time or part time employment depending on the regular/systematic hours worked.

If the offer is declined by either party, an employee cannot request conversion for 6 months.

Note
Small business casual employees can request to be converted to permanent at any time once the conditions are met.

Casual Conversion – No Offer

There is no obligation to make an offer if there are “reasonable business grounds”. These include:

  • where the conversion would require a significant adjustment to the employee’s hours of work in order for the employee to be employed permanently
  • where the employee’s position will not exist in the 12 months after the conversion right arises
  • where the hours of work which the employee is required to perform will be significantly reduced in the 12 months after the conversion right arises; or
  • if there will be a significant change in either the days or times which the employee’s work hours are required to be performed in the 12 months after the conversion right arises.

If conversion is not to be offered:
Employers must give notice of the decision to the employee within 21 days of when the right to be offered conversion arose. If not the employee has a right to request conversion at a later date.

What you need to do next

  • Make sure all employees on JobKeeper enabled directions are now back on their original employment conditions or an alternative
  • Review your casual workforce and identify if any casual employees will need to be offered conversion
  • Review casual employee contracts and start issuing the Casual Employee Information Statement to new employees
  • Put policies in place for conversion processes to educate employees
  • Seek advice and plan for any required workforce restructuring or downsizing
  • Promote engagement – support existing staff

If you need legal guidance or advice call us on 08 8231 6100 or email:

http://admin@ezralegal.com.au.

Julian Roffe

Practice Manager

Ezra Legal

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