Employee request for casual conversion

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Our members were informed of the new National Employment Standard for requests of casual conversion in our September 2021 edition of the IR Magazine. Members are reminded of ongoing obligations surrounding employee requests for casual conversion.

Eligibility criteria for casual conversion – when is an employee entitled to request conversion?

Casual employees are entitled to request conversion to permanent full time or part-time employment if they:

1. have been employed by the member for a period of at least 12 months;

2. during at least the last 6 months of the 12-month period, the employee has worked a regular pattern of hours on an ongoing basis;

3. this regular pattern of hours can be converted to full or part-time work without significant adjustment;

4. the employee has not already refused an offer of casual conversion provided by the member within the 6-month period to the request; 5. the member has not given the employee notice that an offer of conversion will not be made on reasonable grounds within the 6-month period to the request;

6. the member has not given the employee a response to refuse a previous request for conversion made within the 6-month period to the request; and

7. if the member is not a small business employer, the request was made after 16 April 2021 (for employees employed on or before 26 March 2020) or after 21 days of the employee’s 12-month anniversary (for employees employed after 26 March 2020).

Requirements of a request for casual conversion

The request made by an employee must be:

• made in writing;

• state a request to convert to equivalent part or full-time hours worked to part or full-time employment; and

• be given to the member.

The member must respond to the request within 21 days of provision and state whether the request is granted or refused.

Must a member accept a request for casual conversion?

If the casual employee is eligible to make such a request for conversion, the member is required to accept this request unless:

• the member consults with the employee first; and

• has reasonable grounds not to accept the request (which is discussed below).

Accepting a request for casual conversion

After providing a response to the employee stating that the request is granted, the member must then consult and discuss the following with the employee:

• whether the conversion is to full or part-time;

• what the hours of work are after the conversion; and

• what date the conversion takes effect.

NATIONAL

After this discussion, the member must give a written notice to the employee within 21 days from their request that specifies whether the employee will be converted to part-time or full-time employment, what the hours of work are after the conversion, and what date the conversion takes effect.

The date of conversion must be the first day of the employee’s first full pay period starting after the written notice is given, unless otherwise mutually agreed upon.

It is advisable for the parties to enter into a new employment contract that formalises the conversion.

What are reasonable grounds not to accept a request for conversion?

The employer must also consult with the employee if considering refusing a request based on reasonable grounds.

Reasonable grounds must be based on known or reasonably foreseeable facts at the time of refusing the request. The below is a non-exhaustive list of example reasonable grounds:

• acceptance would require a significant adjustment to the employee’s hours of work in order for the employee to be employed as a full-time employee or part-time employee;

• the employee’s position will cease to exist in the 12-month period after the request is made;

• the hours of work which the employee is required to perform will be significantly reduced in the 12-month period after the request is made;

• there will be a significant change in either or both of the following in the 12-month period after the request is made:

o the days on which the employee’s hours of work are required to be performed, and/ or

o the times at which the employee’s hours of work are required to be performed, which cannot be accommodated within the days or times the employee is available to work during that period; and

• granting the request would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory.

If there are reasonable grounds not to accept the request for conversion and the member has consulted with the employee on this decision, the member can decide not to accept the request of casual conversion from the employee.

The member must then:

• give a written notice to the employee that specifies that the member will not accept the request for casual conversion and detailing the reasons for not accepting the request; and

• provide this notice/response within 21 days after the request is given to the member.

If the employee’s request for conversion is rejected on a reasonable ground, the employee can still exercise their discretion to request conversion again at a later time after the initial request. For each subsequent request, the member should reassess the employee’s eligibility to make each request and grant the request unless a reasonable ground exists.

If you require assistance in responding to requests for casual conversion, please contact our Employment Law team on 1800 888 479.