The Federal Government’s new workplace laws include a new definition of casual employment, as well as a new rule that allows employees to provide written notification when they believe they no longer meet the definition of casual employee. 

Starting from August 26, 2024, a casual employee is defined in the Fair Work Act as:   

• the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and  
• the employee would be entitled to a casual loading or a specific rate of pay for casual employees. 

In determining whether there is a “firm advance commitment to continuing and indefinite work”, the Fair Work Commission will consider various criteria, which will include an examination of the entire nature of the employment relationship, including things like what any written employment contract says, whether the employee has the option to accept or reject work, as well as whether there is a regular pattern of work.

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Employers are required to give every new casual employee a Casual Employment Information Statement (CEIS) before, or as soon as practicable after, the employee starts. 

It is important to note that in some instances casual employees may have access to unfair dismissal, regardless of whether they fall within the above definition or not.

Offers and requests for casual conversion  

Prior to August 26, 2024: 

Employers had to make an offer for casual conversion to a part-time or full-time role if an employee had been employed for 12 months and during the last six months the employee had worked a regular pattern of hours on an ongoing basis. 

An employer was not required to make an offer where there were reasonable grounds not to. 

After August 26, 2024   

Employers are no longer required to make an offer to an employee that meets the requirements of casual conversion. Instead, the process to request to convert to permanent employment is instead made by an employee via an employee choice notification.   

Employee choice notification

A casual employee is able to give their employer a written notification request to convert to either a full-time or part-time employee if: 

• the employee no longer believes they meet the requirements of casual employee in accordance with section 15A of the Fair Work Act; 
• there are no current disputes between the parties about the casual employment;  
• the employee has been with the business for at least six months (12 months for small businesses); 
• six months before the notification was given, there was no prior notification provided and not accepted by the employee or any disputes were resolved.   

Employers must first consult with the employee about their request and then provide the employee with a written response within 21 days of receiving a notification of casual conversion request.  

There is a specific process that the employer must follow depending on whether they are agreeing to the request, agreeing to the request with some adjustments that have been agreed during the consultation process, or whether they are refusing the request.  

A refusal can only be made in limited circumstances such as: 

• an employee still meeting the conditions of being a casual in accordance with section 15A of the Fair Work Act; 
• fair and reasonable business grounds for not accepting the notification existing; or 
• accepting the notification would breach a recruitment or selection process legislative requirement under the law.   

Workers will remain casual unless their employment has changed via the employee notification process; the Fair Work Commission makes an order; the employment status changes due to a Fair Work instrument; or alternative employment has been accepted in another capacity.   

Given the extent of the changes, it is recommended that all employers review their employment contracts and policies and procedures.     

Find out how CCIWA’s employment lawyers can help you by contacting our legal team on 08 9365 7746, or via [email protected].