The recent amendments to casual employment under the Fair Work Act 2009 (Cth) include a ‘transition period’ for existing employees, which ends on 27 September 2021. Do you know your obligations during the transition period? Here are some of the key ones.
What is the Transition Period?
To give employers time to implement the changes, there are legislated transitional provisions for casual employees who were employed before 27 March 2021 (“existing casual employees”). These provisions set out various actions that employers must take in the period between 27 March 2021 and 27 September 2021. Some key obligations on employers include:
notifying existing casual employees whether they are being offered permanent employment; and
providing existing casual employees with the Casual Employment Information Statement, as published by the Fair Work Ombudsman.
Offers of Permanent Employment
During the transition period, employers —other than small business employers—must assess all existing casual employees to determine:
whether the employee has, at the time of assessment, been employed for a period of at least 12 months; and
if they have, whether during at least the last six months, the employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee or a part-time employee (as the case may be).
The employer must give each existing casual employee written notice of whether they are or are not being offered conversion to permanent employment; and if the employee is not being offered conversion, the reason why. The reasons why may include, for example:
the employee has not, at the time of assessment, being employed for a period of at least 12 months;
the employee has not worked a regular pattern of hours which they could, with reasonable adjustments, continue to work as a full-time or part-time employee; or
there are reasonable business grounds to not offer the casual employee permanent employment.
Any written notice that the employee is not being offered permanent employment must be given to the casual employee before the end of the transition period. The result of this is that, by 28 September 2021, all existing casual employees will have been notified about whether they are being offered permanent employment, and if not, the reason(s) why.
The obligation to offer an existing casual employee permanent employment (or otherwise notify the employee that they are not being offered permanent employment) is separate to and does not affect a casual employee’s right to request casual conversion under the amended legislation, a modern award, or an enterprise agreement.
Casual Employee Information Statement
The Fair Work Ombudsman has published, as required under the amended legislation, a Casual Employment Information Statement. This document is separate to the Fair Work Information Statement that the Ombudsman was previously (and remains) required to publish.
For small business employers, this casual employment information statement must be provided to all existing casual employees as soon as practicable after 27 March 2021 (which is the beginning of the transition period). This should already have been done.
For all other employers, the casual employment information statement must be provided to all existing casual employees as soon as practicable after 27 September 2021 (which is the end of the transition period).
You can download the casual employment information statement, and view some guidance on when and how the information statement must be provided, on the Fair Work Ombudsman’s website.
EMA Consulting Templates and Help Available
EMA Consulting has a Casual Conversion pack containing advice, template policy and template letters to assist employers correctly document their assessments and offers. It is designed for the period after transition, but the letters are equally usable for transitional casuals. The pack can be purchased for $300 plus GST; order forms can be downloaded from the Resources page on the EMA Consulting website, or by email at email@example.com.
If you need help developing a plan to manage the transition period for casuals who were employed before 27 March 2021, please contact your Consultant.
Require further information/assistance?
This EMA Note is not comprehensive advice about your situation and does not cover all your obligations. If you require further information or advice, please contact your Consultant.