Are you an employer or casual employee? 27 September 2021 is a date that should matter to you

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The Fair Work Act 2009 (Cth) (the Act) establishes the National Employment Standards. There have been recent changes made to the Act, which establish new requirements for employers in relation to casual conversion. Employers must meet these new requirements before 27 September 2021.

What is casual conversion?

The National Employment Standards are the 11 entitlements which must be provided, as a minimum, to all employees across Australia. These entitlements cannot be excluded by any employment contract, enterprise agreement or award. One of these entitlements is the right of a casual employee to be provided with a pathway to becoming a permanent employee (casual conversion). This casual conversion entitlement becomes relevant once an employee has worked for their employer for 12 months.

Depending on:

• whether the employer is a small business employer or not;
• the date that the employee began their employment; and
• whether the eligibility requirements for an employee have been met

an employee is able to request casual conversion. Upon receiving such a request, an employer will need to respond within 21 days and provide reasonable grounds (if any) for refusal.

In some cases, employers should be aware that they will actually be required to offer casual conversion to this employee.

When would an employer be required to offer casual conversion?

If you are a small business employer, you are not required to offer casual conversion.

If you are an employer who is not a small business employer, you will be required to offer casual conversion but only if the employee meets the below requirements (eligibility requirements). The employee:

• has been employed for 12 months;
• in the last 6 months, has worked a regular pattern of hours on an ongoing basis; and
• could continue working these hours as full-time or part-time without significant changes.

This offer must be in writing, be made within 21 days after that employee’s 12-month working anniversary, and must provide the employee with the option to convert their casual employment to either full-time or part-time.

Whether the offer needs to be for a part-time or full-time conversion will depend upon the number of hours worked by that employee within the last 6 months. If the employee has worked:

• the same number of hours as the full-time hours specified in the relevant award or agreement or as compared against the hours worked by another full-time employee who works in the same or comparable position — then full-time employment needs to be offered; or
• fewer hours than the relevant full-time hours— part-time employment needs to be offered.

What is significant about 27 September 2021?

The significance of 27 September 2021 is two-fold. It provides a date before which a casual conversion assessment needs to be made, as well as a date by which a written refusal (if any) needs to be made.

If you are an employer who is not a small business employer, and you have any employees who began working with you before 27 March 2021, then you are required to assess whether they are eligible for a casual conversion offer. Importantly, you are required to do this before 27 September 2021.

This means that you have to consider their eligibility against the eligibility requirements, and either:

• write to the employee presenting them with an offer for casual conversion within 21 days after making the assessment; or
• write to the employee telling them you will not be offering them casual conversion and explaining why this is the case. This must be done within 21 days after making the assessment, but as distinct from making the casual conversion offer, this written refusal must be made on or before 27 September 2021.

An employee then has 21 days within which to write to you either accepting or rejecting this offer. If you don’t receive a response within this time, you are able to assume that they have declined your offer.

If you are an employer and are seeking advice as to your obligations under these changes, or if you are an employee seeking advice about your corresponding rights – please feel free to contact our office on (03) 9853 0311 to speak with Sharelle Staff or another one of the experienced members of our team at Scanlan Carroll. We would be happy to assist.