Changes to casual employment – Fair Work Amendment Act 2021

In March 2021, the Senate passed the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021.

This Act has changed some of the workplace rights and obligations for casual employees, including:

• Definition of casual employment
• Conversion to full-time or part-time (permanent) employment
• Resolving disputes

Below we outline what these changes mean for casual employees.

If you are a casual employee, it’s important to understand what your entitlements are. You can read our fact sheet on Casual Worker Entitlements here, or contact the Australian Unions Support Centre for more information. 

Definition of a casual employee

For the first time, there is now a definition of a casual employee in the Fair Work Act.

Under the Fair Work Act, you are now classified as a casual employee if you accept an offer of employment where there is no firm advance commitment to continuing and indefinite according to an agreed pattern of work.

This means if you accept a job offer that does not have that firm advance commitment, you will stay casual even if you later start working a regular pattern of hours.

Casual conversion

Under the changes to the Fair Work Act, a new entitlement has been added to the National Employment Standards (NES), allowing for casual conversion – i.e. changing from casual to permanent employment.

Under the new rules, an employer (other than a small business employer – employing fewer than 15 employees) has to offer you conversion to full-time or part-time permanent employment if you:

• Have worked for your employer for 12 months
• Have worked a regular pattern of hours for at least the last 6 months on an ongoing basis
• Could continue working those hours as a permanent employee without significant changes.

This offer must be made in writing within 21 days of the end of the 12-month period. You then have 21 days to accept the offer and, if accepted, your employer has to give you notice within 21 days advising if the conversion is full-time or part-time, the hours of work and the date of commencement. These issues should be discussed with you before notice is given.

Your employer does not have to make an offer if they have ‘reasonable grounds’ not to. These reasonable grounds include such things as the expectation your job will cease to exist within the next 12 months, or your hours are likely to be significantly reduced.

If you employer decides not to make you an offer based on reasonable grounds, or because you did not meet the 6 months of regular hours test, they must provide you a written notice with reasons for the decision.

If you believe you have been unfairly refused an offer of casual conversion, contact your union for advice or the Australian Unions Support Centre for free, confidential information.

Resolving disputes

If you and your employer disagree about casual conversion, there are new steps that can be taken to help resolve it.

• If you’re covered by an award, agreement or employment contract you must follow any process for dealing with disputes included in those documents
• If not, you need to try to resolve the disagreement with your employer directly
• If the dispute cannot be resolved, you can refer it to the Fair Work Commission.

Under the changes to the Fair Work Act, you can now also seek help from the Federal Circuit Court if your dispute is about:

• Whether you meet the requirements for casual conversion
• If you can make a request for casual conversion
• If your employer has reasonable grounds to not offer or agree to casual conversion.

If you are having a dispute about casual conversion, your union is the best source for advice and support.  Not a member yet? You can join today.

Need more information about your worker’s rights? You can contact your union or the Australian Unions Support Centre for free, confidential information and advice about any workplace issue.