In a decision published on 9 August 2018, the Fair Work Commission has confirmed that the inclusion of a casual conversion clause to 85 modern awards from 1 October 2018 will proceed as planned, despite submission from employers to narrow the application of the clause.
The model casual conversion clause provides that a “regular casual employee”, defined as a casual employee who has:
- been employed for over 12 months; and
- working an ongoing pattern of hours,
can request conversion to full-time or part-time employment if this would not require “significant adjustment” to their pattern of hours.
Employers can refuse the request “on reasonable grounds”, and examples of this are set out in the model clause including if the casual position will cease to exist within the following 12 months, or if the hours of work or days and times the work is performed are likely to significantly change or be reduced in the following 12 months.
The FWC received a number of submissions, including seeking removal of the word “significant” so that a casual employee could only request conversion if there was no adjustment required. There were also submissions seeking an extended eligibility period or a transition period following introduction of the clause.
While the FWC did make some minor changes to the clause, the substantive effect of the clause remained.
Employers are required to provide all existing casual employees with a copy of the clause by 1 January 2019, and to provide all new casual employees with a copy of the provision within the first 12 months of employment.
Lessons for Employers
- Consider whether any of your casual employees would fall into the definition of a “regular casual employee”
- If you are affected by the change, ensure you provide your casual employees with a copy of the clause as required.
- If you receive a request for casual conversion under the new clause, assess whether you have reasonable grounds to refuse the request and ensure you comply with the provisions of the clause whether refusing or accepting the request.
A new casual conversion clause will take effect in 85 Modern Awards from 1 October 2018. Employers of casual employees need to be aware of the changes and ensure they are compliant with the provisions including notification to existing and new casual employees.