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Casual Conversion Clause Kicks in From 1 October 2018

Casual employment has been a hot topic lately, particularly following the Full Federal Court decision in Workpac Pty Ltd v Skene.

What you now need to know is that from 1 October 2018 the new casual conversion clause will be added to 84 awards.

This means employers whose workers are covered by those awards will need to comply with the casual conversion clause on and from 1 October 2018. Further any employer currently negotiating an enterprise agreement should confirm whether the underlying award is impacted by this change.

What are the Key Features of the Casual Conversion Clause?

The new clause will give casual employees the right to request that their employment be converted to full-time or part-time employment if, for the preceding 12 months, they have worked a pattern of hours on an ongoing basis, which without significant adjustment they could continue to work as a full-time or part-time employee.

Conversion to permanent employment is not automatic however, and an employer may refuse the request to convert, but only on reasonable grounds after consultation with the employee.

Reasonable grounds for refusing the request may include that: 

  • it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time or part-time employee in accordance with the provisions of the relevant award – that is, the casual employee is not truly a regular casual employee
  • it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months
  • it is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months
  • it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work

This list of reasonable grounds is not exhaustive and other matters may arise which makes it reasonable to refuse an employee's request to convert.

Under the new clause, an employer must not engage, re-engage an employee, or reduce a casual employee's hours of work in order to prevent the employee from being able to make the conversion request.

What do Employer's Need to do?

Casual employees must be given a copy of the new clause within the first 12 months of their employment, or if already engaged, by 1 January 2019.

If your business has a current enterprise agreement, there will be no immediate implication. However if the underlying award is one of the 84 to include the conversion clause, you will need to consider the inclusion of the casual conversion clause in any future negotiations for a replacement enterprise agreement.

To view the Model Clause, please click here.

Copyright 2020 K & L Gates

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About this Author

Christa Lenard, KL Gates Law Firm, Labor and Employment Attorney
Partner

Ms. Lenard is a workplace relations and employment lawyer with extensive experience in advising large and medium private sector companies as well as public sector departments and agencies at both Commonwealth and state level, on relevant employment and workplace issues.

Ms. Lenard provides day-to-day advice to clients across all operational workplace issues employer's face, and assists with the management of difficult workplace situations as they arise, whether that be allegations of discrimination or bullying and harassment, claims of adverse...

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Paul Hardman, KL Gates, Workplace Safety Investigations Lawyer, Labor Disputes Attorney
Partner

Mr. Hardman is a partner in the Labour Employment and Workplace Safety practice in the Brisbane office. He provides a wide range of advice and services to clients regarding employment, safety, investigations and disputes relevant to the workplace.

He is an experienced advocate and has appeared extensively in both State and Federal courts and tribunals in employment, safety and other contentious matters. He has experience across a broad range of industries including construction, water, manufacturing, agricultural, petroleum, gas and mining.

Mr. Hardman has significant experience in the conduct of the defence of regulatory investigations and prosecutions, under State and Federal Employment, Workplace, Safety, Corporation, and Environmental legislation.

Mr. Hardman is also a registered Migration Agent with the Australian Government Office of the Migration Agents Registration Authority

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 Michaela Moloney, Partner, Melbourne
Partner

Ms. Moloney has worked for a wide cross section of clients including employers in the public sector, health, education, retail, energy and manufacturing industries and has significant experience in all aspects of employment, industrial and discrimination law. She acts on a broad range of matters for employers including drafting and interpreting employment agreements and policies, managing employee issues arising out of sale of business and outsourcing transactions, assisting employers with the discipline of employees and termination of employment, negotiating collective agreements,...

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Michael Stutley Migration Law Attorney K&L Gates
Partner

Mr. Stutley concentrates his practice in the areas of migration law, employment law, industrial relations, major incidents and workplace safety. He represents national and international clients in all areas relating to employment and industrial related action, including equal opportunity and occupational safety and health.

Mr. Stutley is also a registered Migration Agent with the Australian Government Office of the Migration Agents Registration Authority.

+61-8-9216-0967