“Regular” casual employees covered by an award have a right to request that their employment be converted to permanent employment, following decisions by the Fair Work Commission (FWC) last year. A Full Bench of the FWC has now made some changes and clarified a few matters in another decision released earlier this month.

Who is a regular casual?

A regular casual is an employee who has over a calendar period of at least 12 months worked a pattern of hours on an ongoing basis and could perform the same work as a permanent employee without significant adjustment being required.

Such an employee can request a conversion to permanent employment, but must do so in writing. The employer can agree to or refuse the request, but can only refuse on “reasonable grounds” and after consultation with the employee.

What has been changed?

The FWC considered submissions from a wide range of parties, and its decision will make the following changes

• The 12-month eligibility period will become a rolling period, not a one-off, so the employee’s right to request conversion will remain continually exercisable.
• Casual employees who have worked an average 38 hours per week over the 12 months and are seeking conversion to full-time employment will now be required to have worked “equivalent full-time hours” over 12 months. This change is to allow for the fact that the employee may have taken periods of leave that could have reduced his/her average.
• An employer’s grounds for refusing a request must be “based on facts which are known or reasonably foreseeable” (eg that the job will not exist in 12 months’ time), not speculative or based on a general lack of certainty about future needs.
• The requirement that the employer and part-time employee agree in writing on the terms of employment (days, hours, start/finish times, breaks, overtime and notifying variations) have been clarified by standardising the provisions – in some awards, the employer was previously only required to “inform” the employee. 

Three awards that previously did not have casual employment conversion clauses will now have a clause inserted.

Minimum engagement for casual and part-time employees

This decision also clarified the minimum engagement period for employees to mean that that they must be engaged and paid for at least two consecutive hours on each occasion that they are required to attend work. This means that an employee must be paid for at least two hours every time he/she is called in, which in turn that an employee called in twice on the same day must be paid for at least two hours each time. Previously an employee could be called in twice or more but only paid for two hours.

The FWC also made some other changes to minimum engagement period provisions in some specific awards.

4-yearly review of modern awards – part-time employment and casual employment [2018] FWCFB 4695, 10 August 2018

More news on casuals

In another recent decision by a Full Bench of the Federal Court, a large number of employees currently described by employers as ‘casuals’ could in fact be permanent, thus removing any need to request permanent employment  Read more here.

By Mike Toten on 21st Aug 2018