Legislation
Managing casual workers after recent legislative amendment By Michelle Christmas, Special Counsel, Carter Newell Lawyers As the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Amendment Act), which came into effect on 27 March, 2021, introduced numerous changes to employers’ obligations concerning the appointment and retention of casual employees, principals of real estate agencies are urged to review their current practices pertaining to the recruitment and retention of casual employees to ensure that they remain compliant.
Who is a casual employee?
reference to the terms of the offer of employment which is made and accepted, rather than any subsequent pattern of work.
Casual Employment Information Statements The Amendment Act introduced the newly inserted section 125B into the FWA which requires employers to provide a Casual Employment Information Statement (CEIS) together with the updated version of the Fair Work Information Statement (FWIS) to all casual employees who were engaged prior to 27 March, 2021, and all newly commencing casual employees.
The Amendment Act seeks to resolve the previous uncertainty which had existed with respect to the classification of casual employment.
Employers will already be familiar with the FWIS which provides information about an employee’s minimum pay rates and conditions of employment.
Helpfully, section 15A of the Fair Work Act 2009 (Cth) (the FWA) now defines ‘casual employee’ as being a person who is offered employment without ‘firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person’ and who accepts the offer of employment on those terms.
The CEIS is also an approved document published by the Fair Work Ombudsman which contains information about the rights and obligations attaching to casual employment.
In determining whether there is ‘no firm advance commitment to continuing and indefinite work’, regard must be had only to the following considerations: (a) Whether the employer can elect to offer work and whether the person can elect to accept or reject work; (b) Whether the person will work as required according to the needs of the employer; (c) Whether the employment is described as casual employment; (d) Whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument. Critically, the determination of casual employment will now be assessed by 18 | THE ESTATE AGENT – AUGUST 2021
The CEIS includes information concerning: • The new statutory definition of a ‘casual employee’; • When an employer must offer a casual employee a conversion to permanent employment; • When an employer will not be required to offer a conversion; • When an eligible employee may seek a conversion to permanent employment; • How a small business employer’s conversion obligations differ from other employers; and • The role of the Fair Work Commission in dealing with disputes pertaining to casual conversion.
Employers’ obligation to offer conversion The FWA also imposes certain obligations pertaining to casual conversion to permanent employment. However, the conversion obligations for small business
employers differ to those of other employers (who employ more than 15 employees). Small Business Employers Section 23 of the FWA defines a small business employer as one which employs fewer than 15 workers (including all full-time, part-time and regular casual workers). Small business employers are required, as soon as practicably possible, to provide their casual employees with a CEIS. There is no obligation upon small business employers to offer conversion, however, they will be required to respond to an employee’s request for conversion in the manner prescribed by the Act (see below). Other Employers Unless reasonable grounds exist to justify not offering conversion, all other employers (excepting small business employers) must offer casual employees a conversion to permanent part-time or full-time employment once they have been employed for at least 12 months and where, during the last six months of that period, they have worked a regular pattern of hours which could be continued as a full-time or part-time engagement. The Amendment Act includes a list of factors which may constitute reasonable grounds for not converting a casual employee’s employment, including: (a) The employee’s position will cease to exist in the period of 12 months after the time of deciding not to make the offer; (b) The hours of work which the employee is required to perform will be significantly reduced in that period; (c) There will be a significant change in either or both of the following in that period: (i) The days on which the employee’s hours of work are
