Casual one day, permanent employment the next

Tuesday, 11 July 2017

The Fair Work Commission (Commission) will introduce a "casual conversion" clause into modern awards following a recent Full Bench decision.

This clause will allow casual, award-covered employees to request permanent employment. This change will have a significant impact on employers as their ability to refuse a request for permanent employment will be limited.

In summary, the Full Bench decision means:

  • Casual employees may request conversion to an equivalent full-time or part-time position;
  • The casual employee must satisfy a qualifying period of 12 months employment prior to making the request;
  • The casual employee must satisfy criteria by maintaining a pattern of hours which, without significant adjustment, could continue under permanent full-time or part-time employment;
  • To refuse a request, an employer must establish:
    • that a significant adjustment to working hours would have to be made to accommodate the conversion;
    • the casual position is likely to end within 12 months;
    • the hours of work for the casual position will significantly change or be reduced within 12 months; and
    • any other reasonable grounds based on facts which are known or reasonably foreseeable;
  • A casual employee whose request is refused may seek redress under the dispute resolution procedure of a modern award; and
  • Employers must provide all casual employees with a copy of the casual conversion clause within 12 months of employment.

Presently, the Commission has not determined when the casual conversion clause will be adopted into modern awards. The Commission is consulting about the drafting of the clause.

Impact on employers

Once adopted, the casual conversion clause will mean that employers will have to:

  • Review their operations to determine the number of employees impacted (if any) by the change;
  • Ensure that all impacted casual employees are notified of their rights under the casual conversion provision;
  • Make provision to accommodate requests made by casual employees for permanent employment;
  • Update applicable polices and procedures to ensure compliance; and
  • Comply with the casual conversion clause as non-compliance may constitute a breach of the Fair Work Act 2009 (Cth) and/or the applicable modern award.

For more information, please see:

https://www.fwc.gov.au/documents/decision_summaries/2017fwcfb3541-summary.pdf

https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/2017fwcfb3541.pdf

This article was written by Brad Swebeck, Partner and David Ellis, Graduate-At-Law.

Brad Swebeck
Partner | Sydney
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Chris Egan 
Partner | Melbourne
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Clare Raimondo
Partner | Adelaide
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Erica Hartley
Partner | Perth
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Heinz Lepahe
Partner | Brisbane
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Janice Nand
Partner | Canberra
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Mark Howard
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Sarah Harrison
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Sarah Sealy 
Partner | Hobart
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Steven Penning
Partner | Sydney
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Tony Lawrence
Partner | Melbourne
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Justin Le Blond 
Special Counsel | Sydney
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Sian Gilbert
Special Counsel | Sydney
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Important disclaimer: The material contained in this publication is of a general nature only and is based on the law as at 11 July 2017. It is not, nor is intended to be, legal advice. If you wish to take any action based on the content of this publication we recommend that you seek professional advice.