MGA TMA welcomes Aimee and Jenny to the Legal and IR Team

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Member continue with the employment of the employee.

It is best practice for Members to also issue prospective casual employees with a casual employment contract which formalises the offer and acceptance of employment.

Our Legal and IR Team has prepared template casual employment contracts which can assist Members in ensuring that offers of employment are made in accordance with the new definition of casual employment.

How should existing casual employees be managed in light of the new definition?

Casual conversion obligations may apply to eligible existing casual employees. Should these employees convert to permanent employment, there is no need to take steps to ensure that they fall under the new definition of casual conversion.

For any existing eligible casual employees that decline offers of casual conversion, Members should ensure that they maintain written records that they have declined the offer. Likewise, should Members decide on reasonable grounds not to extend offers of conversion to otherwise eligible employees, those employees should be provided written notice of such reasons.

Existing casual employees that are not eligible for casual conversion and/ or decline casual conversion may not automatically fall under the new definition of ‘casual employment’ due to defects in the manner in which they were engaged. This may carry the risk of implied permanency, where the employee may claim that they are entitled to entitlements as if they were engaged as a permanent employee. To counter this risk, Members are advised to ensure that casual employees are paid an identifiable casual loading to compensate for entitlements that they would otherwise receive as a permanent employee, as Members will be entitled to make a claim to recover this loading amount should there be a finding that the employee is entitled to these permanent employee entitlements.

Interaction between the definition in the Act and definition of casual employment in Awards.

As part of the introduction of the definition of casual employment in the Act, the Fair Work Commission is required to review relevant terms relating to casual employment in modern awards (the Review). The General Retail Industry Award (GRIA) was included in a small group of awards as part of the first stage of the Review. The Review aims to resolve any inconsistency, difficulty or uncertainty in relevant modern award terms so that the modern award terms operate effectively with the Act as amended.

The MGA Legal and IR team has provided submissions to the Fair Work Commission to assist in the Review. We anticipate an outcome of the Review around September 2021.

As a result of the Review, the Fair Work Commission may make changes to the GRIA, particularly to casual employment definitions in the GRIA and the casual conversion clauses in the GRIA. The MGA and Legal and IR team will keep members abreast of developments and any changes to the GRIA.

Next steps:

The Legal and IR Team can assist Members with any queries on engaging casual employees. Please phone 1800 888 479.

Jenny Nguyen joined the MGA TMA Legal and IR Services team in July 2021. Jenny is a solicitor of the Supreme Court of Victoria.

Jenny has exclusively worked in the area of employment & industrial relations, providing both advisory and litigious support to both employers and employees on various types of employment-related matters. Prior to joining MGA, Jenny worked at an employment law firm advocating for employees located across Australia. She then worked in a mid-sized firm where she provided legal assistance and support to local and international employers across diverse industries.

Aimee Lyons joined the MGA TMA Legal and IR Services team in July 2021. Aimee is a solicitor of the Supreme Court of Victoria.

Before Aimee joined MGA, she worked at a personal injury firm providing support to clients through both the no-fault and common law schemes. She has over 7 years of experience in the retail and service industry, including a position at IGA. Aimee also holds a Bachelor of Arts (Major in Psychology) and is passionate about helping others.