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Snapshot

  • The amendments to the Fair Work Act 2009 (Cth) with respect to casual employees commenced on 27 March 2021.
  • The amendments aim to provide up front certainty and protection for employers of casual employees.
  • The trade-off for this certainty and protection is a casual conversion process.

The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 was introduced in the Federal Parliament in late 2020. The Bill, discussed in our recent article ‘The delicate balancing act that is industrial relations reform’ (LSJ, March 2021, 71-73) heralded an industrial relations reform agenda in five particular areas. However, as is often the case, there was only one survivor to the Bill – changes to casual employment.

The changes are significant. Underpinned by an objective of providing clarity in an area of notorious uncertainty, the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (‘Amendment Act’) provides some security for employers, while also providing enhanced prospects for employment security for employees through a casual conversion process.

When is a casual employee a ‘casual employee’?

The Amendment Act (in new section 15A) adopts a definition of ‘casual employee’ intended to draw from existing common law tests. These were the tests that were most recently the subject of scrutiny from the Full Court of the Federal Court in WorkPac v Skene [2018] FCAFC 131 and WorkPac v Rossato [2020] FCAFC 84.

The Amendment Act identifies a person is a ‘casual employee’ if they are engaged on the basis of an offer of employment where ‘the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person.’

The factors that will determine whether an offer was made on the basis of ‘no firm advance commitment to continuing and indefinite work’ are exhaustively stated as whether the:

  • employer can elect to offer or the employee can elect to accept or reject work;
  • employee will work as required based on the employer’s needs;
  • employment is described as casual employment; and
  • employee will be entitled to a casual loading or rate of pay specific to casual employees under the terms of the employee’s contract or the relevant fair work instrument.

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