In our article published last week, we mentioned an update to many Modern Awards, to include provisions giving casual employees the right to request to convert into permanent employees (which took effect from 1 October 2018). Further to this, on 13 February 2019, the Fair Work Amendment (Right to Request Casual Conversion) Bill 2019 (Cth) was introduced into the House of Representatives. The Bill seeks to amend the Fair Work Act 2009, enshrining a new National Employment Standard (NES) entitlement that will enable eligible casual employees to request to be converted from casual employment to full-time or part-time employment.
The right to request casual conversion
The Bill extends the application of existing conversion rights to all employees, regardless of whether they are covered by an enterprise agreement or modern award that does not set out a right to request conversion. The amendments also include a requirement for enterprise agreements to contain a casual conversion term. The new right in the Bill is in line with a model casual conversion clause (the Model Clause) developed by the Fair Work Commission, which has now been inserted into 85 Modern Awards.
When is a casual employee entitled to make a request?
The Bill provides that an employee will be eligible to make a request if the employee:
- is designated as a casual by the employer for the purposes of any fair work instrument that applies to them, or their contract of employment; and
- has, in the period of 12 months before giving the request to the employer, worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee or part-time employee, as the case may be.
Employer’s response & the obligation to consult
Employers will be required to give a written response to an employee’s request within 21 days after the request is given to them, stating whether the request is granted or refused. An employer must not refuse a request unless they have consulted the employee and there are reasonable grounds to refuse the request. The reasonable grounds must be based on facts that are known, or are reasonably foreseeable, at the time of refusing the request.
The requirement to consult the employee who has made the request will allow the employer and the employee to discuss matters relating to the request, including reasons for a proposed refusal or alternative arrangements that suit the needs of both the employer and employee. The Explanatory Memorandum gives the example of where an employer may not be able to offer an ongoing full-time position due to a foreseeable reduction in workload after six months. In this scenario it’s suggested that the employer could refuse the request, but separately propose a full-time contract on a six month fixed-term basis.
Granting a request
If an employer grants a request, they must, within a reasonable period after the request was given to the employer, give the employee written notice of:
- the employee’s new employment type (full-time or part-time);
- the employee’s hours of work after the conversion takes effect; and
- the day on which the conversion takes effect.
A “formal pathway” for conversion
The new Bill is intended to ensure that no eligible employee misses out being able to request a right to casual conversion and is expected to address inadequacies in the previous system. While the Explanatory Memorandum to the Bill recognises that many employees prefer the benefits of being a casual employee, such as the flexibility and casual loading rates, it considers that many employees do not have access to a protected right “providing a formal pathway to request conversion” and that the amendments in the Bill would provide this.