Significant changes to casual employment laws in Australia took effect on 26 August 2024. These changes will have a direct impact on how casual employees are classified and managed, and require employers to issue the Fair Work Casual Employment Information Statement at regular intervals.
In this article we explore the key aspects of these changes and what they mean for both employers and employees.
Before 26 August 2024
Casual employees engaged before 26 August 2024 will remain casual employees under the previous legislative definitions. Casual employees in this category are defined based on the working arrangements at the commencement of their employment.
This classification is defined by an employment agreement which offered a role without a firm advance commitment to ongoing work, which the employee accepted with the knowledge that there was no firm advance commitment to work when they became an employee.
There are four factors which determine if an employer’s offer prior to 26 August 2024 included a firm advance commitment. They are:
- whether the employee could choose to work or not
- whether the employee would receive an offer to work by the employer when the business required them
- if the agreement described the employment as casual
- if the employee was paid casual loading
Before 26 August 2024 there were fewer pathways available to casual employees to convert to permanent employment on their own volition.
After 26 August 2024
From 26 August 2024, casual employees are still defined based on whether they accept a job offer that does not include a firm advance commitment to work. However, the changes emphasise the employee’s choice in deciding whether to remain casual or transition to permanent employment.
There are now more factors to consider when determining if a firm advance commitment to work exists between the employer and employee. These include:
- if it is reasonably likely there will be future work available of the kind the employee usually performs for the business
- the existence of any permanent employees performing the same kind of work for the business usually performed by the casual employee
- a regular pattern of work, which may change over time due to illness, injury or other leave
Employees classified as casual before 26 August 2024 will remain casual unless they chose to move to permanent employment.
For casual employees hired after 26 August 2024, the new definition automatically applies, offering a clearer pathway to permanent employment based on their actual work patterns, such as working regular hours similar to a permanent employee.
The employee choice pathway
Eligible casual employees can now request conversion to part-time or full-time employment under the new employee choice pathway. Written notice can be provided to an employer to change to permanent employment under the pathway if they have been employed for at least 6 months, or 12 months if employed by a small business (i.e., fewer than 15 employees), and believe they no longer meet the definition of casual employee.
The amendments strengthen employees’ ability to make a choice about their employment status, with the decision to transition resting with the employee, not the employer.
The shift post-26 August 2024 gives casual employees more control over their employment status, the change will not impose an obligation on casual employees to convert to permanent if they do not wish to.
Employers: Responding to a notice
Employers who receive a notice must first consult with the employee to discuss changes to their role such as their hours and the type of engagement they will be entering into (full-time or part-time). A response is required within 21 days.
Requests can only be rejected on fair and reasonable grounds such as because:
- the request would require the business to make substantial operational changes; or
- the request would significantly impact the way work is organised within the business; or
- substantial changes to the employees work conditions would be required to make the employment lawful (for an example, compliance with a modern award).
A notice can also be rejected on the grounds that the employee remains within the definition of a casual employee.
What if a casual employee refuses to convert to permanent employment?
An issue arises if an employee’s role changes from casual to permanent (whether under the previous legislative definition or the new legislative definition) but the employee refuses to accept the change to permanent employment.
In this situation the casual role has become redundant, and a permanent role is required. Employers must have regard to the unfair dismissal risk, because casuals are eligible to make a claim if they are employed on a regular and systematic basis for 6 months, or 12 months for a small business employer. Employers should ensure they follow the required consultation and redeployment obligations.
Casual Employment Information Statement
New laws require employers to provide the Fair Work Ombudsman’s Casual Employment Information Statement to new casual employees before, or as soon as possible after, they have started employment.
Employers must also provide the statement to casual employees during employment:
- for small business employers – after 12 months of employment; and
- for other employers – after 6 and 12 months of employment, and then after every 12 months of employment.
If you require any assistance with your casual employee arrangements please contact our Employment & Safety law team.
