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In March 2021, the Federal Government made several amendments to the Fair Work Act 2009 in order to address the increasing number of claims and disputes associated with casual employment (such as the significant 2020 decision of Workpac Pty Ltd v Rossato).

These amendments included:

  • express statutory definitions of a ‘casual employee’ and a ‘regular casual employee’;
  • casual conversion provisions that applied to all national system employees (including those not covered by a Modern Award);
  • new restrictions on the ability of employment relationships to implicitly convert from casual to permanent status in the absence of any oral or written agreement;
  • the introduction of a Casual Employment Information Statement and a requirement that employers must provide the Statement to all new casual employees; and
  • the introduction of statutory set-off provisions associated with the payment of casual loading.

Following on from these changes, on 19 July 2021, a full bench of the Fair Work Commission further clarified and confirmed the changes that would be required to the modern awards based upon these statutory amendments.

Amongst other things, the Fair Work Commission confirmed:

  • that the existing definition of “casual employee” or “casual employment” within the Modern Awards are inconsistent with the new definition of a casual employee in s15A of the Fair Work Act 2009;
  • the need to replace the existing definitions of casual employee in the Awards with the definition from s15A of the Fair Work Act 2009, or by reference to that section;
  • that phrases such as “residual category” and/or “day to day” could give rise to inconsistencies and uncertainty as they are differently expressed from the casual employee definition in s 15A; and
  • the need to replace the casual conversion provisions within the Modern Awards with the more beneficial casual conversion provisions introduced in the Fair Work Act 2009.

Action Items

In light of these changes, employers MUST:

  • understand what these changes mean for their business in respect of new casual employees and current casual employees;
  • consider how the changes impact hiring policies – e.g. how offers of casual employment may be made and expressed in employment agreements, and how position descriptions for casual roles should be worded;
  • review their pro-forma casual employment agreements to ensure consistency with the new casual provisions in the Fair Work Act 2009 (and any applicable modern awards), particularly in relation to any set-off provisions associated with casual loading; and
  • diarise all relevant timeframes relating to casual conversion and hold discussions with casual employees about their conversion rights at the end of these timeframes.