Reminder: Deadline for casual conversion obligations imminent

The National Employment Standards (NES) in the Fair Work Act 2009 (Cth) (Act) were amended with effect from 27 March 2021, placing obligations on employers to:

1. Provide casual employees with the Casual Employment Information Statement (‘CEIS’) available here;
2. Offer eligible casual employees with an opportunity to convert to full-time or part-time employment; and
3. Provide a definition of ‘casual’ for the purposes of the Act.

In respect of (2), employers with 15 or more employees are required by Monday 27 September 2021 to:

• make an offer to an ‘eligible casual employee’ to convert to full-time or part-time employment or
• write to eligible employees to confirm that there are reasonable grounds not to offer to convert their employment.

When an offer must be made

A casual employees will be an ‘eligible casual employee’ if:

• The employee has been employed on a casual basis for a period of 12 months; and
• During at least the last 6 months of that 12 month period, 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 or part-time employee.

The offer must:

• Be in writing; and
• Be for either part-time or full-time employment, depending on the hours the employee worked in the last 6 months of the 12 month period.

When an offer does not need to be made

Employers are not required to make an offer to an ‘eligible casual employee’ if:

• There are ‘reasonable grounds’ not to make the offer;
• The reasonable grounds are based on facts that are known, or reasonably foreseeable, at the time of deciding not to make the offer.

‘Reasonable grounds’ for not making an offer may include:

• the employee’s position will cease to exist in the period of 12 months after the time of deciding not to make the offer;
• the hours of work which the employee is required to perform will be significantly reduced in that period;
• there will be a significant change in either or both of the following in that period:
  • the days on which the employee’s hours of work are required to be performed;
  • the times at which the employee’s hours of work are required to be performed;

  which cannot be accommodated within the days or times the employee is available to work during that period;

• making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory.

However, even if there are ‘reasonable grounds’ not to make an offer to an ‘eligible casual employee’, employers are still obligated to confirm this in writing to the employee, notifying the reasons as to why the offer is not made.

Employers should also check any award-specific requirements that may add to these obligations, when engaging casuals.

Action required by 27 September 2021

The Act requires that by no later than 27 September 2021, employers, in addition to providing the CEIS:

• conduct a review of their casual workforce (in respect of casual employees employed before 27 March 2021) and determine whether any casual employees are ‘eligible employees’; and
• write to eligible casual employees to offer full-time or part-time employment ordecline to offer permanent employment to eligible casuals based on ‘reasonable grounds’ (non-small business employers only); or
• write to employees to advise they are ineligible for an offer for casual conversion.

Eligible casuals retain a residual right to request conversion (including where employed by small businesses), requiring employer responses in 21-day timeframes.  This process will be a separate alert we will issue in due course.

EMA Legal can assist employers with any questions in respect of these changes and with drafting communications to employees.