Posted: 02 Apr. 2021 15 min min. read

Finally: Casual Employment Clarified

Since COVID-19, the norms about the way we work have been turned on their head. The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021 was the government’s proposed industrial relations overhaul to support this new work world. After a fiery debate, crossbench negotiations, and amendments, the Bill passed the Parliament delivering a single, mission-critical ‘fix’; clarity around casual employment arrangements.

Let’s take a look at what the changes mean.

Part 1: Engaging casuals – review and update contracts

Although casuals are a longstanding part of our labour market and currently represent about 20 percent of the Australian workforce, the definition has never been as clear. Now, for the first time the term ‘casual’ will have a definition.

The legislation says a person is casual if they accept their offer of employment, on the basis, there is ‘no firm advance commitment to continuing and indefinite work’. This focuses on the original intention of the parties and how the role is framed from the outset.

Action items:

1. Review and update your casual employees’ employment contracts to:

  • Reflect the new definition
  • Ensure people being offered a casual role are clear they are accepting the offer on that basis

Part 2: During employment – rostering, monitoring, conversion

The new rules provide a clear mechanism for casual employees to gain permanent, secure work if their work patterns evolve into regularised work. They require businesses to proactively offer ongoing employment (on a part-time or full-time basis), if the employee has been employed for at least 12 months, with a regular pattern of hours for at least 6 months.

There are exceptions – such as if the employee’s role will not continue, or hours of work will be reduced or significant change in the future. Small businesses (fewer than 15 employees) will not have to make a proactive offer.

An employee of at least 12 months can ask any time to be converted to a permanent employee, including small business employees.

Employees will be able to go to either the Fair Work Commission or the Federal Magistrates Court if there are disagreements. The Federal Magistrates Court will be able to make enforceable orders via its small claims processes.

Action items:

1. Be strategic about your casual workforce – consider how and when you deploy casuals

2.  Be deliberate about scheduling casuals, both how far in advance you roster them and their work patterns

3. Monitor the work patterns of your casual employees.

Deloitte uses pattern analysis of roster and timesheet records to identify regularised patterns – this can be a complicated task as part of a ‘look back’ so it is much better to keep tabs on work patterns along the way.

4. Ensure systems promptly identify casual employees who have been employed for 12 months or longer 12 months and satisfy yourself that their work patterns have not become regularised. If they trigger the requirements for ongoing work, make sure you follow the processes to offer it to them.

With these legislative changes, organisations with casuals have much to consider. A data lens can help organisations assess their risk and optimise their deployment of a casual workforce.

More about author

Natalie James

Natalie James

Partner, Risk Advisory

Natalie James is a Partner in Deloitte’s Regulatory and Risk Insights practice. She leads Deloitte’s Workplace Integrity Team working with businesses to enhance their workplace integrity and ensure compliance with work laws. She brings deep expertise and insight to helping companies identify and resolve compliance risks, reduce complexity and build fit for purpose, compliant and sustainable workplace practices. Natalie was the Fair Work Ombudsman, leading Australia’s national workplace relations regulator, from July 2013 to July 2018. Prior to that she led the development of work laws as Chief Counsel for the Commonwealth Government. Natalie has a Bachelor of Arts Law and a Masters in Law (Commercial – Labour Law).