Closing Loopholes Act - Casual Employment Changes (26 Aug)
Mar 26, 2024Welcome to the next update in our Closing Loopholes series!
Are you currently a long-term casual employee, but would prefer to work full-time or part-time? Or are you an employer with a predominantly casual workforce?
As part of the Australian Government's 'Closing Loopholes' amendments to the Fair Work Act, from 26 August 2024 there will be changes to the definition of 'casual employee', as well as increased employee rights for casual workers and a new pathway for employees to move from casual to permanent employment.
New definition for 'casual employee'
One of the key amendments is the introduction of a new definition of 'casual employee'. An employee will be a “casual employee” if both of the following conditions are met:
- there is no firm advance commitment by the employer to provide the employee continuing and indefinite work. See below for the full list of factors that require consideration - it's not just what's written in your contract; and
- the employee would be entitled to a casual loading, or a specific rate of pay, for casual employees under the terms of a fair work instrument or employment contract if the employee were a casual employee.
Importantly, the previous requirement for 'continuing and indefinite work' to be according to an agreed pattern of work has been removed - this means that a worker can still be classified as a casual employee even if they have regular hours, if there is no firm advance commitment to continuing and indefinite work.
In determining whether an employee is a 'casual employee', employers will need to consider a range of questions including:
- What is the real, practical and true nature of the employment relationship?
- Was there an initial mutual understanding or expectation between the employer and the employee that continuing and indefinite work would be provided?
- Is it reasonably likely that continuing work will be available in the future?
- Are there any existing full-time or part-time employees performing the same kind of work?
New pathway to move from casual to permanent employment
Additional processes around casual-to-permanent conversion have also been introduced. For example, an eligible casual employee can initiate a change to full-time or part-time employment if the employee:
- believes they are no longer a casual employee at the point in time when they make the notification to their employer; and
- wants to change their employment status to full-time or part-time employment.
There will be no requirement for an employee to issue a notification if they do not want to change their employment status.
Where an employee makes a notification, an employer must respond in writing within 21 days. Employers are then required to consult with an employee in relation to the notification.
Please feel free to reach out to a member of the Employii team and we can assist you with this or any questions you may have. We are contactable via [email protected] or give us a call on 0401 510 559.
Stay tuned for our next Closing Loopholes blog!
Author: Jeff Ha (HR Officer)
