Countdown to casual conversion
12 July 2021
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The focus of this article is the new casual conversion entitlement.
As of 27 March 2021, there is a positive obligation on employers to assess whether casual employees who have worked for the employer for 12 months meet the eligibility criteria for casual conversion. An employee will be eligible for casual conversion where the employee:
As the casual conversion process has been included in the NES, it overrides existing casual conversion processes available under enterprise agreements and modern awards (to the extent those provisions contain less beneficial terms).
Employers subject to dual conversion requirements need to consider how to comply with both the new casual conversion process under the NES and an existing process under an enterprise agreement or modern award. (There is also a process occurring through the FWC to vary modern awards as necessary and a mechanism for varying an enterprise agreement on application.)
A six month transition period applies during which employers must assess existing casual employees who have been employed for 12 months for casual conversion. The transition period ends on 27 September 2021.
After the transition period ends, employers must make the assessment within 21 days after the first anniversary date of the employee's employment and provide a written notice to the employee either:
The reason for an employer not to make an offer may be either:
Casual employees who receive an offer must either accept or decline the offer, in writing, within 21 days of receiving it (or the offer is assumed to be declined).
Employers have less than three months remaining to:
The NES also includes a residual right for casual employees to request to convert to permanent employment, similar to existing rights to request casual conversion under some modern awards.
Assuming a casual employee meets the eligibility criteria for casual conversion, the employee may submit a request for casual conversion to their employer at six monthly intervals. The employer must accept or refuse the request in writing within 21 days and, if refused, consult with the employee prior and provide reasons.
Award and agreement covered employees can utilise the dispute resolution procedure under the applicable instrument to refer a dispute regarding casual conversion to the FWC.
Award/agreement free employees may also refer a dispute to the FWC which may deal with the dispute and, with the parties' agreement only, arbitrate the dispute.
Authors: Abigail Cooper, Counsel and Fergus Calwell, Lawyer.
The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
Readers should take legal advice before applying it to specific issues or transactions.
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