Changes to the Fair Work Act 2009 (Cth) came into effect on 26 August 2024 which dealt with the topic of casual conversion. The changes mean that a new pathway has become available for casual employees wishing to change from casual employment to permanent employment. The new pathway is known as the Employee Choice Pathway.
When introduced last year, the Employee Choice Pathway initially only applied to employees who were employed after 26 August 2024. From that date, new employees were entitled to request that they convert to permanency. However, for employees employed prior to that date a transition period applied meaning that it remained the employer’s responsibility to offer them the opportunity to change from casual employment to permanent employment.
The transition period ended on 26 February 2025 for non-small businesses (for small businesses who have less than 15 employees, the transition period will end on 26 August 2025). This means that for casual employees who were employed prior to 26 August 2024, it is now their responsibility to notify their employer that they would like to change from casual employment to permanent employment by using the Employee Choice Pathway.
Casual employees can use the Employee Choice Pathway if they:
- have been employed for at least 6 months (or 12 months if employed by a small business); and
- believe they no longer meet the requirements of the casual employee definition (namely, that the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work and that the employee is entitled to casual loading or a specific rate of pay for casual employees).
Employers can only refuse an employee’s request to convert to permanency for certain reasons including:
- the employee still meets the definition of a casual employee;
- there are fair and reasonable operation grounds for not accepting the request; or
- accepting the notification would mean the employer would not be complying with a recruitment or selection process as required by law.
In summary, from 26 February 2025 most casual employees must use the Employee Choice Pathway to notify their employer if they wish to change their employment status from casual to permanent. This responsibility will rest with the employees concerned, and in most cases, employers will no longer have any obligation to proactively offer casual conversion to any of their casual employees.
The only exceptions are:
- employers who have an award or enterprise agreement which requires them to proactively offer conversion from casual to permanent employment – for these employees the terms of the industrial instrument will still apply; and
- casual employees who were employed by a small business prior to 26 August 2024 – these employees can access the Employee Choice Pathway from 26 August 2025 but until then, small business employers must still offer casual conversion to their eligible casual employees who were employed prior to 26 August 2024.
If you require advice or more information in relation to the changes to casual conversion, please contact us.
This article was written by Clare Raimondo, Partner and Alana De Ieso, Solicitor.
