Casual workers win right to convert to part- & full-time employment

The Fair Work Commission has developed a draft model conversion clause which will allow a casual worker to convert to part-time or full-time employment if: 

  • a qualifying period of 12 calendar months is met;
  • the casual employee must have worked a pattern of hours on an ongoing basis over the 12 month period which could continue to be worked on a full-time or part-time basis without significant adjustment
  • the employer must provide all casual employees with a copy of the casual conversion clause within the first 12 months after their initial engagement. 

Employer refusal 

Conversion may be refused by the employer if: 

  • it would require a significant adjustment to the casual employee’s hours of work to accommodate them in part-time or full-time employment in accordance with the terms of the applicable modern award, or;
  • it is known or reasonably foreseeable that the casual employee’s position will cease to exist; or 
  • the employee’s hours of work will significantly change or be reduced within the next 12 months; or 
  • on other reasonable grounds based on facts which are known or reasonably foreseeable.

Reasons for the decision

It was particularly noted by the Commission that the applicability of the National Employment Standards depends upon whether the employer choses to engage and pay an employee as a casual. Employers therefore notionally have the power to deny the benefits of the National Employment Standards to anyone it employs.

“There is no constraint on the employer choosing to engage as casuals persons who equally might readily be engaged as permanent full-time or part-time employees under the terms of the modern award. The lack of any such constraint creates the potential to render the NES irrelevant to a significant proportion of the workforce,” the Commission stated in its decision summary.

Although evidence adduced to the Commission showed that employers have not generally exploited this ability, evidence also showed that some employers have indefinitely engaged a casual workforce that wanted to be permanently employed.

Consequently, such workers find that the National Employment Standards do not apply to them. 

The Commission was therefore persuaded of the need for a casual conversion clause on the grounds that unrestricted uses of casual employment may operate to undermine the fairness and relevance of the safety net of modern awards and the national employment standards. 

New minimum engagement periods

It was also held by the Commission that 34 modern awards that currently do not have any minimum engagement period should be subject to a two-hour minimum engagement period to prevent exploitation of casual workers. 

Specific sectors: hospitality, clubs, restaurants, catering

Part-time employment clauses in the hospitality and clubs modern awards require the amount of ordinary hours to be fixed at the beginning of the employment. The amount of ordinary hours can be changed only by written agreement between the worker and the employer. These part-time clauses are close to being a “dead letter” and are contributing to increasing casualisation in the hospitality, clubs and restaurant sectors because they are “unworkable” owing to fluctuating and variable work demands, the Commission said.

Concluding that there needs to be greater flexibility in these sectors, the Commission is proposing to vary these awards to allow flexibility but subject to the rule that working hours can only be allocated to periods that the employee has said he or she is available to work. 

The Commission proposes to extend this new rule to the restaurants and catering industries too on the basis that they are likely to have similar circumstances.

Specific sectors: retail, fast food, hair & beauty

Casual workers subject to the retail, fast food, hair & beauty modern awards will be eligible for overtime penalty rates. They are currently eligible for evening and weekend work penalty rates. An “overtime” penalty rate applies to employees who work in excess of the ordinary hours in a day or a week. 

Further hearings

The changes outlined above have not yet come into effect. Interested parties have been invited by the Fair Work Commission to make further submissions. Interested parties must file submissions according to a staggered schedule of deadlines, the first of which is 19 July 2017.  FIAA will advise our members of the changes when they come into effect.

 

Source: Workplace Info.