Employee Entitlements and the New Industrial Relations Bill: What’s Changed?
The Federal Government has introduced a new bill into Parliament which will make some significant changes to the Fair Work Act 2009 (Cth). Whilst several changes to the Act are proposed, among the most significant are those that will impact casual workers.
Definition of casual employee
The Bill will insert a new definition of what constitutes a “casual employee”, stating that a casual employee is someone who has been offered work with “no firm advance commitment to continuing and indefinite work according to an agreed pattern of work”. Also included in the Bill is an extensive list of considerations that must be considered when determining whether an offer of employment is one that meets the definition of casual employment.
Importantly, under this broader definition, employers will not be able to convert casual employees to a fixed term contract, pointing to efforts to prevent casual employees from being placed on a series of fixed term contracts rather than being offered ongoing and permanent employment.
Casual conversion to permanent employment
If the new Bill is passed, employers must offer a permanent position to any casual employees who have worked for the same employer for one year. In order to be eligible for such a conversion, the casual employee must have worked a regular pattern of hours for at least six months prior. An employer may have the right to refuse casual conversion where “reasonable grounds” exist, such as where the conversion would result in a “significant change” to the employee’s working hours which could not be accommodated by the employee’s availability to work.
Sick leave and other employee entitlements
The proposed amendments will allow casual leave loadings or special pay rates to count towards any entitlements a casual employee may be determined to have. The proposed amendment will allow employers who have mistakenly categorised an employee as a “casual employee” to offset permanent entitlements by the sum of any casual loadings paid.
Retrospective operation
If the Bill is enacted, it will have some retrospective operation, meaning that it will apply to existing casual employees engaged prior to the amendments coming into effect, as well as to new employees from the date of enactment.