On 26 August 2024, amendments to the Fair Work Act 2009 (Cth) (‘FW Act’) with respect to casual employment came into operation. The amendments relate to the employment of casual employees and introduce a number of new obligations into the FW Act employers are required to comply with when employing a casual employee. The amendments apply to both existing and new casual employees. The following article details those changes. 

Casual employee definition  

From 26 August 2024, where a business wishes to employ a person as a casual employee, the business must ensure , at the time the particular role is offered, it is offered on the basis there is ‘no firm advance commitment to continuing and indefinite work according to an agreed pattern of work’.  

If a person accepts the offer on that basis and therefore becomes an employee, the person will be considered casual for the purposes of the FW Act. 

In considering whether, at the time an offer of employment is made, there is ‘no firm advance commitment to continuing and indefinite work according to an agreed pattern of work’, the FW Act states an employer must only have regard to whether:  

• The employer can elect to offer work and the employee can reject work
• The employee will work as required according to the employer needs
• The employment is described as casual
• The employee is entitled to a casual loading pursuant to the offer or a fair work instrument (for example, a modern award).

 Once engaged and working, whether there is a firm advance commitment to continuing and indefinite work, both employers and employees must consider:  

• The ability and actual practice of offering and accepting (or rejecting) work.
• Whether continuing work is reasonably likely to be available.
• Whether part-time or full-time employees are undertaking similar roles.
• Whether the employee has a regular pattern of work.

A regular pattern of work does not in itself suggest a firm advance commitment to continuing and indefinite work as no single consideration can determine whether an employee is considered to be a casual or not. 

If these criteria are not satisfied, it may mean the person is a permanent employee, consequently resulting in an entitlement to paid leave and other entitlements.  

Casual conversion 

As a result of FW Act being amended from 26 August 2024 employees can give their employer notice requiring them to convert their employment to either full-time or part-time employment, under certain circumstances.  

A casual employee can only give notice requiring the employer to convert their employment if they: 

• Believe their employment no longer meets the requirements of being casual, for example, lacking firm advance commitment;
• Have been employed for a period of at least six months, or 12 months for a small business employer;
• They haven’t rejected, or been rejected for, conversion to full-time or part-time employment in the past six months;
• They aren’t currently in a dispute regarding an employer-driven or employee-driven conversion, or haven’t been in a dispute about the same in the past six months.

Where a casual employee gives notice, the employer must consult with the employee and determine whether they will accept notification. Accepting the notification means the casual employment is converted to permanent employment. 

It is recommended the employer organise to meet with the employee as soon as they can upon receiving the notice. 

Reasons to not accept notification include if the employee still meets the requirements of being casual; and accepting notification is impractical because substantial changes to the employee’s terms and conditions would be reasonably necessary to ensure the employers does not contravene a term of a fair work instrument that would apply to a full-time or part-time employee. The employer, within 21 days must give a written response to the notice. 

Recurrent notices 

Once a business has offered casual conversion to an employee after 12 months of employment, the business is not obligated to offer conversion every 12 months. This means if a casual employee declines an offer to convert their employment, the employer is not obligated to offer conversion at the next 12-month anniversary. 

Businesses should keep a written record of both the offer of casual conversion and rejection, if applicable.

An employee can give more than one notice, so long as they meet the notice requirements. Those requirements include if the employee cannot give a new notice if an older notice is under dispute or they have already given notice within the last six months. The employee must always follow the response process outlined above in circumstance where an employee has met the notice requirement. 

What can’t a business do in relation to casual conversion? 

If an employee does not wish to have their employment converted from casual to permanent, a business cannot force or require the employee to do so. Additionally, a business cannot: 

• terminate an employee’s employment,
• reduce/vary a casual employee’s hours of work , or
• change the employee’s pattern of work,

 to avoid their obligations in relation to casual conversion.