Casual employees – Laws have changed!

On Friday 26 March 2021, sections of the Fair Work Act relating to casual employees were amended. These changes came into effect on Saturday 27 March 2021.

A person is a casual employee if they accept an offer for a job from an employer knowing that there is no firm advance commitment to ongoing work with an agreed pattern of work.

For example, if an employee is employed as casual, their roster changes each week to suit their employer’s needs, and they can refuse or swap shifts, that could mean they are casual.

Specifically, under the Fair Work Act, a person is a casual employee if:

>they are offered a job
>the offer does not include a firm advance commitment that the work will continue indefinitely with an agreed pattern of work
>they accept the offer knowing that there is no firm advance commitment and become an employee.

To work out if the employer’s offer doesn’t include a firm advance commitment, consider whether:

>the employer can choose to offer the employee hours of work and it’s the employee’s choice to work or not
>the employee will be offered hours of work when the business needs them to work
>the employment is described as casual
>the employee is paid a casual loading (a higher pay rate for being a casual employee), or a specific pay rate for casual employees.

Once someone is employed on a casual basis, they continue to be a casual employee until they either:

>become a permanent employee through:
casual conversion, or
are offered and accept an offer of full-time or part-time employment, or
stop being employed by the employer.

Employers need to provide their casual employees with the Casual Employment Information Statement.

How is casual different to full-time or part-time?

Full-time and part-time employees have an advance commitment to ongoing employment. They can expect to work regular hours each week. They are also entitled to paid leave and and must give or receive notice to end the employment.

Just having a regular pattern of work doesn’t mean an employee is permanent (full-time or part-time).

What do casual employees get?
Under the National Employment Standards (the NES), casual employees are entitled to:

access a pathway to become a permanent employee
2 days unpaid carer’s leave and 2 days unpaid compassionate leave per occasion
5 days unpaid family and domestic violence leave (in a 12-month period)
unpaid community service leave.

Casual employees can request flexible working arrangements and take unpaid parental leave if:

they have been employed by their employer as a casual employee on a regular and systematic basis over at least 12 months
they reasonably expect to continue being employed by the employer on a regular and systematic basis.

Under awards and agreements, casual employees are also paid a casual loading (a higher pay rate for being a casual employee), or a specific pay rate for being a casual employee. You can use Pay and Conditions Tool to find the minimum award rates for casuals and you can find registered agreements on the Fair Work Commission’s website.

Casuals don’t get paid days off, notice of termination or redundancy pay, even if they work regularly for a long time. In some states and territories long serving casuals are eligible for long service leave.

Changing to full-time or part-time employment
A casual employee can change to full-time or part-time employment at any time if the employer and employee both agree to it.

Under the NES, casual employees have the right to access a pathway to become a permanent full-time or part-time employee, in some circumstances. This is also known as ‘casual conversion’. For more information see Becoming a permanent employee at Fair Work Commission’s website.

Most awards also have a process for casual conversion. Some enterprise agreements and other registered agreements have similar processes. The Fair Work Commission is reviewing award clauses about casual conversion to make sure they are consistent with the NES and can assist with varying casual conversion clauses in agreements. For more information go to the Fair Work Commission’s website.