The Federal Parliament will be considering today (9 December 2020) the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 (the Bill) which will amend the Fair Work Act 2009 (Fair Work Act) and related legislation to assist Australia’s recovery from COVID-19.
This Bill intends to create a new definition for casual employees and will require employers to make an offer to such casual employees if:
- the employee has been employed by the employer for a period of 12 months beginning the day the employment started; and
- during at least the last 6 months of that period, the employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee or a part-time employee (as the case may be).
These employees must then provide a written response within 21 days upon their employers' offer. And if these employees do not respond, then it will be considered as they declining the offer of permanent employment.
The Bill also intends to require employers to provide to their new casual employees a Casual Employment Information Statement. This statement will be sourced from the Fair Work Ombudsman.
The Bill is intended to prevent unfair outcomes in situations where employers have to pay an employee twice for the same entitlement. In the event that an ongoing employee is misclassified as casual, the Bill enables casual loading amounts will be offset against claims for leave and other entitlements in certain circumstances, to address any potential for ‘double-dipping’ when recognising the employee’s correct classification.
This casual conversion amendment will be familiar to employers because, since July 2017, the Fair Work Commission had inserted a model casual conversion clause in most modern awards. This was explained by the Australian Childcare Alliance (ACA) NSW via:
- Fair Work Commission to allow 12-month casuals to convert to part/full-time employees
- FAQ - Casual Conversion - Children Services Award 2010
Thus far, the reasonable grounds for refusal must be based on facts which are known or reasonably foreseeable, and include the following:
- it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time or part-time employee in accordance with the provisions of this award;
- it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;
- it is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months; or
- it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.
After the Bill has passed both Houses of Parliament, ACA NSW will provide further information (including the corresponding penalties for non-compliance) through future communique and via the ACA NSW Network Meetings (face-to-face and webinars (live and recorded)).
PUBLISHED: 9 DECEMBER 2020