The transition period for existing casual employees has now ended. This EMA Note is a reminder of what employers should have already completed, and what they must do next.
The Fair Work Act 2009 (“FW Act”) was amended earlier this year to include important new provisions relating to casual employees, as explained in our EMA Note in April 2021. The amendments introduced significant new rights for regular casual employees to be offered permanent employment. What should have been completed? In other than small businesses, special provisions applied for casuals who were already employed on 27 March 2021, during a six-month ‘transition period’ that ended on 27 September 2021. By now, any casual who was employed before 27 March 2021 should have:
had their length of service and work pattern for at least the last six months formally assessed;
been advised in writing of the assessment and whether they will be offered permanent employment – and if not, the reasons;
been offered conversion to permanent employment if they met the specified criteria; and
been given a copy of the Casual Employment Information Statement.
If you have not completed this phase for all casuals who commenced employment before 27 March, you will be in breach of the National Employment Standards and should seek advice as well as completing the assessments and offers as soon as possible. Small business employers are not required to offer to convert their casual employees to permanent employment, however they must have issued the Casual Employment Information Statement to all casual employees. Going forward From 28 September 2021, employers who are not small businesses must:
provide the Casual Employment Information Statement to casual employees;
monitor the service anniversary of casual employees so that an assessment can be made for them once they reach 12 months of service;
comply with the formal obligations for assessing and making offers to new casual employees based on the specified criteria in the FW Act;
respond to any requests from casual employees for conversion to permanent employment;
review the terms of enterprise agreements to ensure the terms of casual employment comply with the FW Act.
Small business employers are not required to offer to convert their casual employees to permanent employment, however they must:
continue to provide the Casual Employment Information Statement to all casual employees; and
respond to request for conversion made by eligible casual employees, refusing only on reasonable business grounds.
Help for employers – forms and templates EMA Consulting has a Casual Conversion pack containing guidance, a template policy and template letters to assist employers correctly document their assessments and offers. The pack can be purchased for only $300 plus GST; order forms can be downloaded from the Resources page on the EMA Consulting website, or by email at firstname.lastname@example.org. Require further information/assistance? If you require further information or advice, please contact your EMA Consultant.
EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.