Casual Conversion- Children Services Award 2010

Are casual employees now considered permanent?

The simple answer is yes but under the right circumstances.

On 16 August 2018, the Full Federal Court delivered judgment upon an employee’s casual status.

Regardless of the provisions that apply to a workforce under its award or enterprise agreement, if an employee has a regular and predictable pattern of work with an expectation of ongoing engagements, they are likely to be permanent as opposed to casual.

In addition, when an employee commences employment with irregular hours under a causal contract, their position could morph into that of permanent employment.

Under these new provisions, employees currently hired by employers as casual could in fact be permanent.

The Full Court held that the determination of whether an employee is a casual must be conducted by assessing “the real substance, practical reality and true nature of the relationship” as opposed to adopting the description the parties have given to the relationship.

The Full Court endorsed the notion that, in order for an engagement to be considered casual:

• there should be no certainty about the period over which the employment is offered; and
• there should be an informality, uncertainty and irregularity about the engagement.

So, if an employment relationship has a level of certainty, regularity and predictability about the hours to be worked, then it is inconsistent with being a casual engagement.

Are your casual employees in actual fact considered permanent?

Under the Children Services Award 2010, clause 10.6 “Right to request casual conversion”, an employee may request that their employment be converted to full-time or part-time employment if they are a regular employee. There are certain conditions that must be met.

 They must:

• have been employed by the employer for 12 months;
• in the preceding 12 months worked a predictable or regular pattern of hours on an ongoing basis; and
• request their employment be converted in writing and provide this to the employer.

A regular casual employee who has worked less than equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to part-time employment consistent with the pattern of hours previously worked.

A regular casual employee is not obliged to convert their employment.

What are employers’ obligations?

Employers who employ regular or long-standing casuals that meet the criteria for permanency need to:

• provide every casual employee with a copy of the provisions set out in subclause 10.6 of the Children Services Award 2010, within the first 12 months of the employee’s employment.

Note: In respect of casual employees already employed as at 1 October 2018, an employer should have provided such employees with a copy of the provisions of this subclause by 1 January 2019.

• must not engage and re-engage a casual employee (which includes a refusal to re-engage) or have their hours reduced or varied, in order to avoid any right or obligation under clause 10.6.
• an employer must not require a regular casual employee to convert to permanency.
• when an agreement of employment conversion occurs, both employer and employee must discuss and record in writing:
  • the form of employment to which the employee will convert –that is, full-time or part-time employment; and
  • if it is agreed that the employee will become a part-time employee, the matters referred to in clause 10.4(c) Children Services Award 2010; An employee (full-time or part-time) who requests to work above 90% of full-time hours, but less than full-time, will not be considered to be full-time and will be remunerated for the actual hours worked.

As an employer you can notify a casual employee of the conversion clause in the award at the beginning of their employment. You are obligated (as mention above) to notify within 12 months of employment commencing.

Advise your employee that converting from casual to full/part-time employment would also change their hourly rate of pay. You may choose to provide any regular casual employee with notice and the option of employment conversion, at the end of their first 12 months. Should they either accept or decline, record of the notice should be kept in their staff file in the event of a future dispute regarding notification, this notice can be used as evidence.

A downloadable version of the casual conversion notification pack is available for members in the members area of the ACA NSW website.