Employers, other than small business employers, are reminded that the deadline for making offers of conversion (to permanent employment) to casual employees who were employed prior to 27 March 2021 is looming. Employers need to have assessed the eligibility of their casual employees and written to all workers, either offering conversion or setting out the reason an offer is not being made, by 27 September 2021. These requirements arise because of changes to the Fair Work Act 2009 and the National Employment Standards (NES), resulting from the implementation of the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021, as reported earlier in the year.
As of 27 March, all employers should be issuing new casual employees with the Casual Employment Information Statement, in addition to the Fair Work Information Statement, as soon as possible upon commencement of employment.
Small business employers – being employers with less than 15 employees, on a head count – are not required to make offers of conversion to casual employees but should have already issued all existing casuals (being casual employees engaged prior to 27 March 2021) with the new Casual Employment Information Statement. Small business employers, please do this now, if you haven’t already.
All other employers (not being small business employers) must assess the eligibility of existing casual employees (being casual employees engaged prior to 27 March 2021) by 27 September 2021, and either make a written offer of conversion to permanent employment (which the casual employee may decline) or, explain to the employee, in writing, why an offer of conversion is not being made. Resources are available to ES Subscribers to assist employers in making offers of conversion to eligible casuals. Subscribers, login to your online account, and start with our ‘Casual Employment & Conversion’ fact sheet (available under the ‘Casual Conversion’ sub-heading on our ‘Fact Sheets’ page). Also publicly available is our Easy Guide to Casual Conversion.
As soon as possible after 27 September 2021, all other employers (not being small business employers) must also furnish all existing casuals (being casual employees engaged prior to 27 March 2021) with the new Casual Employment Information Statement.
Modern Award changes on the way
The Fair Work Commission is also working to finalise amendments to the Modern Awards, to align any previous definitions of a casual employee with the universal definition introduced into section 15A of the Fair Work Act 2009 (the Act) and, to ensure the casual conversion obligations accord with those inserted into the NES as from 27 March.
Sensibly, the proposed changes will see any individual definitions of what constitutes casual employment replaced with a default reference to the Act, while the traditional casual conversion clauses – some of which are quite lengthy – will be replaced with a reference to the uniform provisions of the NES, which now apply to all national-system employers, whether covered by a Modern Award, Enterprise Agreement or otherwise.