On 1 October 2018, our employment solicitors informed a new casual workers Ruling came into force and was inserted into 85 modern awards, including the retail, social, community and restaurant awards (the Ruling). If you employ casual workers, this Ruling will directly affect your business.
The Ruling now allows a regular casual employee to request that their employment be converted to full-time or part-time employment.
Regular casual employees:
- Who have over a calendar period of at least 12 months worked a pattern of hours on an ongoing basis (without significant adjustment), which the employee could continue to perform as a full-time employee
- Who works 38 hours per week
may request to become a full-time employee. The Ruling also applies to regular casual workers who are working consistent part-time hours.
Decision and Grounds for Refusal
The employee’s request to be a full-time or part-time employee must be in writing. Once the employer reaches a decision regarding the conversion of employment, they must consult the employee about their decision. This means the employer should sit down and discuss his/her thoughts with the employee and ultimately explain their decision.
Importantly, the request can only be refused on reasonable grounds, which can include:
- it would require a significant adjustment to the employee’s hours (i.e. the employee is not a true regular casual employee);
- it is known or reasonably foreseeable that the employee’s position will cease to exist within the next 12 months;
- it is known or reasonably foreseeable that the employee’s hours will significantly reduce within the next 12 months; or
- it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.
If the employer refuses the request, the employee must be given a written notice setting out the reason for the refusal within 21 days. If the employee does not accept the refusal, this will be categorised as a ‘dispute’ under the Award and allow the employer or employee to refer the matter to the Fair Work Commission.
Acceptance of Request
If the request to convert the employment is successful, the next step is for the employer and employee to sit down and discuss the change. Under the Ruling, the parties must discuss and record in writing the new form of employment (i.e. full-time or part-time) and if part-time, it the employee’s regular pattern of work, including hours, days of work and the starting and finishing times per day.
Converting Back to a Casual Employee
It is important for casual employees to seriously consider the decision to convert their employment. Once the employment is converted to full-time or part-time, the employment may only be converted back to casual with the consent of the employer. It is interesting to note that the Ruling does not prohibit the employer from unreasonably refusing this request. However, over time the Courts may impose this restraint.
Even if employees do not request to become full-time or part-time, employers are obliged to provide existing employees with a copy of Ruling by 1 January 2019. A copy of the Ruling must also be given to all new casual employees within their first 12 months of employment.