Federal Industrial Relations Bill Passed by Parliament

By Chao Ni, Principal,  James Sanders, Senior Associate, and Herbert Fischbacher, Principal

On 18 March 2021, Parliament passed the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 (the Bill), minus provisions that were proposed in the first reading version of the Bill relating to:

  1. Wage theft offences and enforcement;
  2. Part time flexibility;
  3. Flexible work direction;
  4. Enterprise agreement making;
  5. Sunsetting of pre-2010 workplace agreement;
  6. Transfer of business rules; and
  7. Lifting of the small claims jurisdictional limit.

We previously summarised these axed-provisions in this article – New Federal Industrial Relations Bill Introduced.

The final Bill passed by Parliament will amend the Fair Work Act 2009 to:

  1. Introduce a statutory definition of casual employee (closing off the ability for Courts to determine that a casual employee could be a permanent employee by the conduct of the employer and employee)
  2. Impose a positive obligation on employers to:
    1. Make an offer to convert a casual employee to a permanent employee if:
      1. a casual employee has been employed for a period of 12 months beginning the day the employment started; and
      2. during at least the last 6 months of that period, the employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee or a part-time employee (as the case may be).
    2. If an offer of casual conversion is not to be made, give written notice to the casual employee to explain the reasons behind why the offer cannot be made.
    3. If a casual employee accepts a casual conversion offer, hold discussions with the employee on, and subsequently issue a written notice to confirm:
      1. whether the employee will convert to full-time or part-time employment;
      2. the employee’s hours of work after the conversion takes effect; and
      3. when the conversion will take effect.
    4. Respond to any request made by a casual employee to convert to a permanent employee where the employer has not complied with their obligations outlined in 2(a) and (b) above;
    5. Give all casual employees a copy of a Casual Employment Information Statement (which will be prepared and made available by the Fair Work Ombudsman) before, or as soon as practicable after, the employee starts employment as a casual employee.
  3. Require a Court to set-off an identified casual loading paid to a casual employee against any permanent employee entitlements claimed by that employee relating to:
    1. Paid annual leave;
    2. Paid personal/carer’s leave;
    3. Paid compassionate leave;
    4. Payment for absence on a public holiday;
    5. Payment in lieu of notice of termination; and/or
    6. Redundancy pay.

These changes in the Fair Work Act 2009 will take effect from the day after the Bill receives Royal Assent and will apply to both new and existing casual employees.

It is important for employers to:

  1. Update their casual employment contract template to account for the new legislative changes;
  2. Set date reminders to comply with casual conversion obligations (under both the Fair Work Act 2009 described above as well as parallel obligations under relevant modern awards); and
  3. Implement a standard casual conversion procedure, including a suite of draft employee communications.

The employment lawyers at MST can offer fixed fee services for template casual employment contracts and standard casual conversion procedures.  Contact us today by email or by phone +61 3 8540 0200.