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Casually back to the future

by | Jul 25, 2023 | C1: Commitment, C2: Capability, Fair Work, Human Resources, Wage Obligations

example flexible working arrangement

The Hon Tony Burke, the Federal Minister for Employment and Workplace Relations, has announced pending changes to the Fair Work Act to provide greater job security for workers who are engaged as casuals, essentially overturning legislation passed by the Morrison Government a couple of years ago.

So what is the real story?

A few years back, there were a couple of cases in the Federal Court where decisions were made that, notwithstanding the fact that an employment arrangement was described as casual in the employment contract, it was not really casual if the employee was engaged on regular and systematic hours and had a reasonable expectation of continuing employment.

The Morrison Government legislated to overrule those determinations.

There was also a subsequent High Court decision that overturned those rulings determining instead that the contract had primacy in determining whether or not a working arrangement was casual in line with the new legislative provisions.

The proposed amendments are intended to return us to the situation where the arrangement is determined on the basis of its true nature in practice rather than just on what might be written into the contract. Minister Burke has dubbed it ‘the what’s really going on test’.

Casual conversion

Through the legislation passed by the Morrison Government, the National Employment Standards were amended to provide casual workers with a right to request conversion from casual employment to permanent employment subject to certain conditions and generally based on a consistent pattern of hours over at least 6 months during a continuing period of employment of at least 12 months.

Prior to this, many modern awards already included rights for employees to convert from casual employment after 6 months of continuous employment and these provisions have been around for decades so it isn’t anything new, just the mechanics and the rules can change.

It sounds like the proposed legislation might reduce the required period of continuing employment back to 6 months before an employee can request casual conversion.

A bit of middle ground

We already have some benchmarks in place on this stuff for access to the unfair dismissal jurisdiction. A casual employee can access this jurisdiction if they have been regularly and systematically engaged on a continuing basis and have a reasonable expectation of continuing employment if:

  • they have been employed for at least 6 months in a business with 15 or more employees or
  • they have been employed fora at least 12 months in a business with less than 15 employees 

    Do we really need to create a different set of rules and timeframes for determining whether an employee is a real casual or not? 

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