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Casual Conversion

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On 27 March 2021, an addition to the National Employment Standards (NES) came into effect. The changes provide a pathway for casual employees to convert to:

• permanent full-time employment; or
• permanent part-time employment.

Who Is A Casual Employee?

The industrial relations reforms provide an amended definition of a “casual employee”.

A person is a casual employee if they are offered and accept a job without a “firm advance commitment” to:

• continued work; or
• an ongoing pattern of work.

To determine if an employee is casual, consider whether:

• their shifts change each week, rather than following a set roster;
• their employer can offer them shifts in line with the needs of the business;
• they can choose which shifts they work and can turn shifts down if they don’t suit their schedule;
• they are paid casual leave loading.

There are other factors that may mean an employee is or isn’t casual. Whether they have a firm advance commitment from the employer is a key consideration.

What Employers Need to Do

Employers must provide all casual employees with the Casual Employment Information Sheet. This provides information on when they have the right to become a permanent employee.

Employers With 15 Or More Employees

Before 27 September 2021 employers must offer casual conversion to any employee:

1. Employed for at least 12 months;
2. Who has worked a consistent pattern of work for at least the last 6 months; and who
3. Could continue that pattern on a permanent basis without significant change.

Employers are only exempt from making an offer if they have “reasonable grounds” not to. If an employer intends not to make an offer, they must notify the employee in writing.

Small Business Employers

Employers with fewer than 15 employees do not have to offer casual conversion. Employees can, however, request full-time employment when they are eligible. To request conversion to full-time employment, the employee must:

1. Have worked for the employer for at least 12 months;
2. Have worked a regular pattern of hours for at least the last 6 months; and
3. Be able to continue those hours on a permanent basis without significant change.

The employee must also not have, in the last 6 months:

1. Refused an offer of permanent employment with the employer; or, on reasonable grounds
2. Been notified by the employer that they are not offering casual conversion; or
3. Had a request for casual conversion refused.

There are some exceptions that allow an employee to make another request within 6 months. For example, if their circumstances change and the grounds for refusal no longer apply.

The employer must consider the request and respond in writing. They can only refuse a request on certain grounds.

When an Employer Can Choose Not to Make an Offer or Refuse A Request

An employer can only refuse a request or choose not to make an offer for casual conversion if:

1. the employee does not meet the requirements set out above; or
2. the employer has a reasonable business ground.

Reasonable grounds can include if, in the next 12 months, the employee’s:

• position will not exist;
• hours will be significantly reduced;
• days or times of work will significantly change; or
• hours would have to significantly change to accommodate full-time or part-time employment.

The grounds relied on must be based on facts:

• known by the employer; or
• which are reasonably foreseeable.

An employer must inform their employee of the grounds they are relying on if they:

1. refuse a request from an employee for casual conversion; or
2. choose not to make an offer.

Can an Employer Fire A Casual Employee to Avoid Making Them Permanent?

All employees have workplace protections to allow them to exercise workplace rights. Casual conversion is an entitlement under the NES. An employer cannot take adverse action against an employee for:

• having the right of casual conversion; or
• exercising the right to request casual conversion.

It is unlawful for an employer to dismiss an employee due to their workplace right. An employer cannot dismiss a casual employee after 12 months to avoid having to make them an offer.

When to Seek Legal Advice from An Employment Lawyer

If a dispute has arisen with your employer or employee, you may need legal representation.

Legal Advice for Employers

Employers can prevent opening their business to adverse action by seeking legal advice:

• before dismissing an employee; or
• when considering not to make an offer or refuse a request for casual conversion.

Legal Advice for Employees

Employees may have avenues to make a claim against their employer if:

• they have been unlawfully dismissed; or
• their employer has taken other adverse action against them due to a workplace right.

There are strict time limits in place, so you should act without delay to ensure you do not lose valuable rights.

Aitken Whyte Lawyers Brisbane Are Focused on Results

If you need advice on your employment situation or representation in a dispute, we can assist.

It is imperative to have experienced lawyers when dealing with this complex area of law.

We have a wide range of experience as lawyers for both employers and employees. This allows us to reach timely resolutions and achieve results for our clients.

Our Brisbane Employment team will guide you through the dispute resolution process. We are happy to discuss your options and the steps you can take.

For expert legal advice and representation, contact us today.

Office Location and Contact Details

Brisbane

Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000

Ph: 07 3229 4459
Fax: +617 3211 9311
E: enquiries@awbrisbanelawyers.com.au