Casual conversion clauses now in force

Nov 2018

From 1 October 2018, casual conversion clauses have been implemented in many modern awards.

The casual conversion clause provides casual employees with an entitlement, after 12 months of ‘regular’ casual employment, to request that their employment be converted to part-time or full-time employment.

If you are an employer in an industry affected by the change1, you must provide all casual employees with a copy of the new casual conversion clause:

  • within the first 12 months of their employment in the case of casual employees engaged after 1 October 2018; or
  • by 1 January 2019 in the case of casual employees who were already employed as at 1 October 2018.

For the purpose of the casual conversion clause, a ‘regular’ casual employee is one who has in the preceding 12 months worked an ongoing pattern of hours which, without significant adjustment, could continue to be performed as a part-time or full-time employee.

Any request by a casual employee to convert to part-time or full-time employment pursuant to the casual conversion clause must be made in writing.

An employer may refuse a request to convert to part-time or full-time employment only after consultation with the employee, and only on reasonable grounds based on facts which are known or reasonably foreseeable.

Examples of situations in which it may be reasonable to refuse a request to convert to part-time or full-time employment include:

  • Where the employee is not a ‘regular’ casual employee and the conversion to part-time or full-time employment would therefore require significant adjustment to the employee’s hours of work;
  • Where it is known or reasonably foreseeable that the employee’s position will cease to exist within the next 12 months;
  • Where it is known or reasonably foreseeable that the employee’s hours of work will be significantly reduced within the next 12 months;
  • Where it is known or reasonably foreseeable that, within the next 12 months, there will be a significant change in the days or times at which the employee will be required to work which cannot be accommodated within the days or times at which the employee is available to work.

Where an employer and employee agree to convert a casual employee to full-time or part-time employment, the conversion will take effect from the start of the next pay cycle subject to any alternative agreement reached by the parties.

Notwithstanding the introduction of the casual conversion clause, ‘regular’ casual employees may elect to remain employed on a casual basis. In other words, an employer cannot require a casual employee to convert to part-time or full-time employment.

In the event of any dispute regarding a casual employee’s request to convert to part-time or full-time employment, the parties should refer to the dispute resolution clause within the applicable modern award.

Employers who are unsure whether they are affected by the introduction of the casual conversion clause should check the modern award applicable to their industry and/or seek legal advice. Lara Radik, Special Counsel can be contacted on lradik@carternewell.com or +61 (0) 7 3000 8441.

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1 Including but not limited to employers in the real estate industry, hospitality industry, aged care industry, finance and insurance industry, cleaning services industry, and retail industry.

This article may provide CPD/CLE/CIP points through your relevant industry organisation.