The National Employment Standards (NES), contained in the Fair Work Act 2009, place a legal obligation on employers to convert casual employees to full-time or part-time (permanent) in some circumstances.
Changes to the Fair Work Act 2009 affecting casual employment provisions will take effect on 26 August 2024. These changes include a new definition of casual employment and new ‘employee choice’ casual conversion provisions.
Current provisions will remain until 26 August 2024.
Do I have to convert casual employees?
A small business with less than 15 employees does not have a legal obligation to offer a casual employee a full time or part time position.
A business with 15 employees or more has a legal obligation to offer a regular casual employee conversion to a full time or part time position. The head count must include any regular casual employees and employees in an associated entity.
To be eligible, a casual employee must have worked a regular pattern in the six months leading up to their 12-month anniversary.
A regular casual employee may be a casual labourer working 7.00 am to 3.00 pm, Monday to Friday. This would be regular and systematic, and an employer (with more than 15 employees) has a legal obligation to offer.
An offer may not have to be made to a casual labourer working a flexible roster with sporadic shifts. This would be irregular and non-systematic.
For advice on this what is regular and systematic please contact the Workplace Relations team.
When and how do I make an offer?
An eligible casual employee must be offered casual conversion within 21 days of their 12-month anniversary.
An employer must write to the employee with an offer and include:
- Type of employment offered (full time or part time).
- Wage details
What do I do if an employee accepts?
An employer has 21 days from the date of acceptance to respond to the employee with further details. This may include:
- Confirmation of full time or part time position.
- Hours of work after the conversion takes effect.
- The day the employees’ transition will take effect.
What do I do if an employee declines?
An employee has no obligation to accept the casual conversion offer.
An employer has met their legal obligation by making an offer at an employee’s 12-month anniversary and does not need to re-offer again.
I have over 15 employees and do not want to offer casual conversion. What do I do?
There must be reasonable grounds for an employer not to make an offer to an eligible casual employee.
Reasonable grounds may include however not limited to:
- In the next 12 months, the position will cease to exist.
- In the next 12 months, the role will not be continuing in its current pattern.
The reasonable grounds must be based on current business operations, or reasonably foreseeable, at the time of deciding not to make the offer.
An employer must write to an employee within 21 days of their 12-month anniversary to notify the employee that an offer will not be made and provide the reasonable grounds as to why.
What does an employee have to do?
An employee must respond in writing to their employer within 21 days of receiving the offer to accept or decline.
An employer can consider an offer declined should an employee fail to respond.
A regular casual employee working for an employer with less than 15 employees has the right to request casual conversion at their 12-month anniversary. An employer must respond to a request within 21 days with an offer or the reasonable grounds for not making an offer.
Reasonable grounds may include however not limited to:
- In the next 12 months, the position will cease to exist.
- In the next 12 months, the role will not be continuing in its current pattern.
Need more help?
Legislation changes can be challenging to keep up with. Our Workplace Relations team are across all Fair Work Act changes and amendments, and are available to speak to members. Contact us today or call 1300 30 50 10.
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