New Casual Employee Laws

A new definition of ‘casual employee’ will be introduced to the Fair Work Act. Under this definition, an employee is only a casual if:

• there isn’t a firm advance commitment to continuing and indefinite work, taking into account a number of factors, including the real substance, practical reality and true nature of the employment relationship, and

• they're entitled to receive a casual loading or specific casual pay rate.

The other factors that must be considered include whether:

• the employer can offer or not offer work to the employee (and whether this is happening)

• the employee can accept or reject work

• it's reasonably likely there will be future work available to the employer’s business, based on the nature of the business

• there are full-time or part-time employees performing the same kind of work in the employer’s business as the work the employee usually performs

• the employee has a regular pattern of work.

The above isn't a full list and other factors may apply. We will have to see how the case law develops in the Fair Work Commission.

Other changes that are important are the right to conversion provisions. Employees will be able to notify their employer of their intention to change to permanent employment if the employee:

• has been employed for at least 6 months (or 12 months if working for a small business employer) Click here for the Fair Work definition of a small business employer.

• believes they no longer meet the requirements of the new casual employee definition, that is they are regular and have the expectation of ongoing work.

An employer does not have to accept the conversion application but there are strict timeframes in which they must act, and they must be able to show that a conversion is impractical.

Employees who start as a casual, will stay casual until their employment status changes either through:

• a conversion process or Fair Work Commission order, or

• accepting an alternative employment offer and starting work on that basis.

If you have any questions please contact Andrew Cameron at Primary Employers Tasmania on 0407 200 909.