Author: Lehanne Bleumink, Gold Seal HR Services Manager.
As part of the four yearly Modern Award review, the Fair Work Commission determined that Modern Awards should include a Casual Conversion term. Therefore from 1 October 2018, casual employees covered by 85 of the Modern Awards have the right to request full-time or part-time employment after working as a regular casual for at least 12 months with an employer. It is noted that many Modern Awards already had Casual Conversion provisions.
As a result, the Banking Finance & Insurance Award 2010 (BFI Award) has had the clause added at clause 10.4, it is important to understand how a request for Casual Conversion must be managed. The new clause will affect the rights and obligations of employers who employ people who work on a regular and systematic basis, as casual employees. Clause 10.4 can be reviewed by following this link: BFI Award 2010
The new clause introduces the concept of a ‘regular casual employee’, being an employee who works ‘a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee or part-time employee’. Effectively it gives an employee the ability to ‘convert’ casual employment to part-time or full-time employment and receive all the entitlements that follow.
When is an employee entitled to Casual Conversion?
To be eligible to request Casual Conversion, a casual employee must be a ‘regular casual employee’. A regular casual employee must have worked:
- for a period of 12 months or more; and
- a pattern of hours on an ongoing basis, which the employee could continue to perform as a full-time employee or part-time employee (as applicable), without significant adjustment.
For example, a casual employee who has worked equivalent full time hours a week, over the preceding period of 12 months, may request to have their employment converted to full-time employment. While a casual employee who has worked less than equivalent full time hours, may request to have their employment converted to part time employment, consistent with the pattern of hours previously worked. This right becomes available on a continuous basis while the employee meets the above criteria (i.e. it is not a once off right).
A Casual Conversion request must be made in writing. If the request is granted, following a discussion with the employee, the employer must record the conversion in writing. Conversion will take effect from the next pay cycle (unless otherwise agreed).
Can an employer refuse the request for Casual Conversion?
Employers can refuse a request for Casual Conversion provided that:
- they have consulted with the employee;
- there are reasonable grounds to do so; and
- the refusal is put in writing within 21 days of the request being made.
The requirements and grounds for refusal vary across Modern Awards and should be reviewed in the applicable Award. Reasonable business grounds in the BFI Award include:
the conversion would require a significant adjustment to the employee’s hours of work in order for the employee to be engaged as a full-time or part-time employee in compliance with the Modern Award;
- it is known, or reasonably foreseeable, that the employee’s position will cease to exist within the next 12 months;
- it is known, or reasonably foreseeable, that the hours of work which the employee is required to perform will be significantly reduced in the next 12 months; or
- it is known, or reasonably foreseeable, that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12
- months which cannot be accommodated within the days and/or hours during which the employee is available to work.
- The new clause does not require an employer to offer permanent employment to a ‘regular casual employee’.
- The new clause requires an employer to provide a copy of the clause to casual employees employed as at 1 October 2018, by 1 January 2019.
- The new clause requires an employer to provide a copy of the clause to all casual employees employed on or after 1 October 2018, within 12 months of their employment commencing.
- The new clause requires the casual employee to put their request for conversion, in writing.
- The new clause requires an employer to respond to such request in writing, and within 21 days of receiving the request.
- The new clause does not require an employer to agree to such request provided they have reasonable grounds for doing so.
- Nothing in the new clause obligates a casual employee to request to convert to full or part time employment, nor permits an employer to require a casual to do so.
What should employers do now?
It is recommended that employers immediately review the BFI Award to familiarise themselves with the applicable Casual Conversion clauses and the particular requirements. Ensure all existing casual employees covered by the Award are provided with a copy of the new clause by 1 January 2019. Remember to provide new casual employees with a copy of the Casual Conversion clause, within the first 12 months.
It is important to note, , another new clause affecting casual employment which has been added to the BFI Award effective 1 October 2018, is that a casual employee must be engaged and paid for at least 2 consecutive hours of work on each occasion they are required to attend work.
For assistance on any of your HR/IR requirements – call Gold Seal on 03 9510 5100 or email HRServices@goldseal.com.au