Businesses still confused about recent changes to casual employment


The federal government’s changes to casual employment became law when the Senate passed the Industrial Relations bill in March 2021, just over two months ago.

Since then, businesses have been grappling with the detail, and what it now means to them, but also to the casual workers.

According to Employsure, Australia’s largest workplace relations adviser, the bill was meant to help support struggling businesses while enhancing casual worker rights.

It targeted five key areas of Australia’s Industrial Relations system and significantly changed the legal status of casual employees in the IR system.

Employsure business partner Josh Paterson explained that four of the five measures — award simplification, greenfields agreements, wage theft, and enterprise bargaining — were scrapped in the Senate, while only one, measures which deal with casual employment, passed.

“There have been a number of changes to casual employment that have come into effect since the amendments were made to the Fair Work Act,” Mr Paterson said.

“One of the most significant changes in the new legal definition of a casual worker. Now the definition is the law: a casual employee will remain a casual until they are either converted to a permanent role or accept an alternative offer of permanent employment.”

The IR Omnibus Bill made four key amendments to the Fair Work Act 2009 (Cth) in relation to the changes to casual employment:

  1. The inclusion of a definition for a “casual employee”.
  2. In circumstances where an employee has been incorrectly classified as a casual, rather than as a full-time or part-time employee, employers will be able to offset any entitlements retrospectively claimed by the employee against the 25 percent casual loading that they have already paid to the employee.
  3. Casual employees will now have extended rights in relation to conversion from casual employment to permanent conversion after 12 months of employment. This now applies to all National System Employees, not just those employees who are covered by a Modern Award.
  4. Employers are required to provide their casual employees with a Casual Employment Information Statement, which will be prepared by the Fair Work Ombudsman.

“This is a win for employers and will ultimately help them avoid confusion with their employees, and possible future legal cases,” Mr Paterson said.

Employsure has released additional information to help clarify the confusion for businesses. It said other casual provisions that passed include a new legal avenue to help employers avoid instances of “double-dipping” as well as the casual conversion clause, which empowers employers to convert casual workers into permanent employees.

This now applies to all National System Employees, not just those covered by a Modern Award.
Mr Paterson took the opportunity to remind employers that it is beneficial to have a digital system in place that can monitor employees, so when the time comes to offer a casual permanent position, the transition is not tricky or confusing.

A digital platform, such as Employsure’s BrightHR, is an example of how technology can help employers stay on top of their obligations.
Employers looking to convert casual workers to permanent roles are also reminded to carefully monitor their pattern of hours, to determine whether or not that worker is eligible to be offered conversion to permanency, or is able to request it in the first place.
“It is in the best interest of employers to do this if they wish to minimize the number of workers becoming entitled to, or exercising, casual conversion rights,” Mr Paterson said.
“Giving employers more of an opportunity to convert casuals to a permanent role will ultimately act as a fix to double-dipping backpay claims and will help provide additional certainty to both employers and employees on the status of casual employment.”

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