New changes to the Fair Work Act for casual employees
01 Apr 2021
- Employment Law
Recent Fair Work amendments aimed at regrowing jobs lost during COVID-19 have brought secure ongoing employment into proximity for many casual workers and reduced the backpay burden for employers found to have misclassified employees. Historically the lack of a legal definition of a ‘casual worker’ in the Fair Work Act has led to significant litigation, including the recent case of WorkPac Pty Ltd v Rossato  FCAFC 84 (which you can read about here)
On 22 March 2021 the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021, or the ‘Industrial Relations Omnibus Bill’, passed both Houses of Parliament. The Bill clarifies the definition of a casual employee and lays the path for their transition into full-time or part-time roles.
The Bill declares that after 12 months engaged in a role and having worked a regular pattern of hours in the previous 6 months, casual employees will either receive an offer of full-time or part-time employment or a notice outlining why they have not received such an offer. Employers can only not offer a conversion or reject a request if they have reasonable grounds which are based on facts known or reasonably foreseeable at that time.
Small business are excluded from the mandatory conversion under the Bill, however casual employees will still have a right to seek transition into an ongoing position provided they meet the requirements above.
In a bid to offer some protection for businesses, the Bill also provides a statutory offset rule which allows employers who are found to have misclassified casual employees to reduce any backpay entitlements owing by the amount of casual loading already paid.