Following 2017’s main decision in the Fair Work Commission’s (FWC) Casual and Part-time Employment Case, on 9 August 2018 a Full Bench of the FWC handed down a decision determining various outstanding issues, including the terms of the Commission’s model casual conversion clause.

In its latest decision, the FWC has made some modifications to the draft model casual conversion clause that was published in last year’s main decision in the case.

• The 12 month qualification period for a casual to be eligible to request conversion is a rolling period, so that eligibility remains whenever a casual has, in the preceding 12 months, worked the required pattern of hours.
• A casual employee’s request to convert can only be refused by an employer on reasonable grounds and after there has been consultation with the employee.
• For any ground of refusal to be reasonable, it must be based on facts which are known or reasonably foreseeable.
• An employer must provide casual employees (covered by an award that contains the model clause) with a copy of the clause within the first 12 months of the employee’s first engagement to perform work. For casual employees already employed on 1 October 2018, the employer must provide the employees with a copy of the clause by 1 January 2019.

The FWC’s model casual conversion clause provides:

XX     Right to request casual conversion

(a)      A person engaged by a particular employer as a regular casual employee may request that their employment be converted to full-time or part-time employment.

(b)      A regular casual employee is a casual employee who has in the preceding period of 12 months worked 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 under the provisions of this award.

(c)      A regular casual employee who has worked equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to full-time employment.

(d)      A regular casual employee who has worked less than equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to part-time employment consistent with the pattern of hours previously worked.

(e)      Any request under this subclause must be in writing and provided to the employer.

(f)      Where a regular casual employee seeks to convert to full-time or part-time employment, the employer may agree to or refuse the request, but the request may only be refused on reasonable grounds and after there has been consultation with the employee.

(g)      Reasonable grounds for refusal include that:

(i)      it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time or part-time employee in accordance with the provisions of this award – that is, the casual employee is not truly a regular casual employee as defined in paragraph (b);

(ii)      it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;

(iii)     it is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months; or

(iv)     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.

(h)      For any ground of refusal to be reasonable, it must be based on facts which are known or reasonably foreseeable.

(i)       Where the employer refuses a regular casual employee’s request to convert, the employer must provide the casual employee with the employer’s reasons for refusal in writing within 21 days of the request being made. If the employee does not accept the employer’s refusal, this will constitute a dispute that will be dealt with under the dispute resolution procedure in clause X. Under that procedure, the employee or the employer may refer the matter to the Fair Work Commission if the dispute cannot be resolved at the workplace level.

(j)       Where it is agreed that a casual employee will have their employment converted to full-time or part-time employment as provided for in this clause, the employer and employee must discuss and record in writing:

(i)      the form of employment to which the employee will convert – that is, full-time or part-time employment; and

(ii)      if it is agreed that the employee will become a part-time employee, the matters referred to in clause X.

(k)      The conversion will take effect from the start of the next pay cycle following such agreement being reached unless otherwise agreed.

(l)       Once a casual employee has converted to full-time or part-time employment, the employee may only revert to casual employment with the written agreement of the employer.

(m)     A casual employee must not be engaged and re-engaged (which includes a refusal to re-engage), or have their hours reduced or varied, in order to avoid any right or obligation under this clause.

(n)      Nothing in this clause obliges a regular casual employee to convert to full-time or part-time employment, nor permits an employer to require a regular casual employee to so convert.

(o)      Nothing in this clause requires an employer to increase the hours of a regular casual employee seeking conversion to full-time or part-time employment.

(p)      An employer must provide a casual employee, whether a regular casual employee or not, with a copy of the provisions of this subclause within the first 12 months of the employee’s first engagement to perform work. In respect of casual employees already employed as at 1 October 2018, an employer must provide such employees with a copy of the provisions of this subclause by 1 January 2019.

(q)      A casual employee’s right to request to convert is not affected if the employer fails to comply with the notice requirements in clause XX(p).

The 84 awards that do not currently include a casual conversion clause were varied from 1 October 2018 to insert the model casual conversion clause (in some cases with modifications to address award-specific issues). The 28 awards that already contain a casual conversion clause (e.g. the Manufacturing and Associated Industries and Occupations Award 2010) will not be varied to replace the existing provisions with the model provision.

Other elements of the FWC’s latest decision include:

• Operative from 1 October 2018, 28 awards that do not currently contain a minimum engagement period for casuals were varied to include the following provision:

“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.”

• Operative from 1 October 2018, the Manufacturing and Associated Industries and Occupations Award 2010 and the Food, Beverage and Tobacco Manufacturing Award 2010 were varied to place a three hour ‘floor’ under the facilitative provision which enables an employer and a casual to agree on a shorter minimum engagement period than four hours, and under the facilitative provision that enables an employer and part-time employee to agree to a day or shift of less than four hours.

If you would like more information about engaging casual employees please contact Ai Group’s Workplace Advice Service on 1300 55 66 77.

Alternatively, if you would like advice about managing casual conversion for award covered employees please contact your local employment, workplace and industrial lawyer in Sydney, Newcastle, Wollongong, Adelaide, Melbourne or Brisbane or email Ai Group Workplace Lawyers at info@aigroupworkplacelawyers.com.au.