Realising that it did not have the numbers to pass the IR Omnibus Bill, the government withdrew all but the casual employment provisions. Those changes were passed by the Parliament on 22 March 2021. This note explains the key changes relating to casual employment and examines what is likely to come next for the other changes that had been proposed to the Fair Work Act 2009 (Cth) ("FW Act").
CHANGES RELATED TO CASUAL EMPLOYMENT
A right to casual conversion has been inserted into the National Employment Standards ("NES"). The terms are broadly similar to those in modern awards and provide the right of a casual to request conversion to permanent employment after 12 months of service if the most recent six months service was as a regular casual employee. Small businesses are exempt from this change. Complex obligations apply to employers about offering, accepting or refusing these requests. Dispute and small claims processes are available for the employee to challenge an employer's refusal to convert.
These NES changes will affect all employers, but especially for award-free employees and those under enterprise agreements without casual conversion rights.
A new definition of "casual" has been inserted into the FW Act. This is not as straightforward as might be expected and is geared toward the common law understanding outlined in the recent Federal Court rulings. The FW Act now clarifies that periods of service as a "casual" (under the new definition) does not count as service for annual leave, personal/carer's leave, notice of termination or redundancy pay.
Critically, the FW Act now has a new section that is intended to remove the "double dip" of casual loading if a long-term casual successfully claims payment for entitlements as a permanent employee, as occurred in the case of Workpac Pty Ltd v Rossato.1 (The High Court is currently hearing an appeal on this, but the case is yet to be determined.)
Employers will also inherit an additional Fair Work Ombudsman Casual Employee Information Statement and associated additional obligations about issuing it.
EMA Consulting will shortly schedule detailed briefings for clients on the changes to casual employment provisions.
WHAT ABOUT THE OTHER CHANGES?
The government has for now removed all other aspects of its Bill. Controversially, that included stronger provisions against wage theft that had bipartisan support. We cannot know what will happen in relation to those other provisions; however some aspects seem likely to be further agitated both politically and in the media. We see the following topics as likely to maintain a high profile:
Anti-wage theft provisions.
A simpler method for a part-time employee to agree in advance with the employer to work additionalordinary hours at their ordinary pay and accrue leave (ACTU and employer groups are already workingtogether on this in some industries, via the Fair Work Commission).
Sunset provisions for "zombie" enterprise agreements.
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