Casuals converting to permanent employment – can it be done?

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The Fair Work Commission reviews modern awards every 4 years to make sure the awards continue to provide a fair and minimum safety net to employees.

In the most recent review, the Fair Work Commission decided that all awards should provide a right for casual employees to convert to part-time or full-time permanent employment in some circumstances. Some awards already contain a casual conversion clause, but not all.

Whilst the changes aren’t set in stone, employees should be aware that, very soon, they may be able to make this request (if not already, depending on the award). Employers should begin planning now for the potential impact of these changes.

In what circumstances can casual employees request to be made permanent?

The Commission has developed a model casual conversion clause which it proposes to include in 85 modern awards (which do not currently contain a similar right to casual employees).
To be able to make a request for conversion to permanent, the casual must –

  1. Have worked with the employer for 12 months; and
  2. Have worked over the 12 months a pattern of hours on an ongoing basis, without significant difference, which could continue to be performed in accordance with the full-time or part-time employment provisions of the relevant award.

Employers should be aware that even if the conversion clause is not invoked, employing someone on a regular and systemic pattern can still be deemed a part-time employment arrangement even if the parties are treating it as a casual employment. This is particularly relevant in the event of dismissal.

The model clause also requires the employer to provide all casual employees (whether they become eligible for conversion or not) with a copy of the casual conversion clause within the first 12 months after their initial engagement.

Can an employer refuse a request for conversion to permanent?

If a casual worker makes a request for conversion, the employer may refuse the request if –

  1. it would require a significant adjustment to the casual employee’s hours of work to accommodate them in full-time or part-time employment in accordance with the terms of the applicable modern award; or
  2. it is known or reasonably foreseeable that within the next 12 months:
    • the casual employee’s position will cease to exist; or
    • the employee’s hours of work will significantly change or be reduced; or
  3. on other reasonable grounds based on facts which are known or reasonably foreseeable.

If you have questions regarding casual and permanent employment or any employment law issues, please don’t hesitate to contact me.

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