Introduction Of Casual Conversion Clause In Modern Awards
By Renee Karakinos, Law Graduate, MST Lawyers
As part of the Fair Work Commission’s four-yearly modern award review, a new model clause, titled ‘Right to request casual conversion’, was inserted into 85 modern awards, and has been effective since, 1 October 2018. The original decision can be accessed here.
All employers, who operate under one of the 85 impacted modern awards, must be aware of their rights and obligations concerning the new clause.
This clause will not affect employers who operate under a registered workplace agreement, or those employers who operate under one of the 28 modern awards which previously contained casual conversion clauses.
What Is The New Clause?
The casual conversion clause entitles a regular casual employee to request that their employment be converted to full-time or part-time employment.
A casual employee will be considered a ‘regular casual employee’ where, in the preceding period of 12 months, they have:
(a) worked a pattern of hours on an ongoing basis and,
(b) without significant adjustment, they could continue to perform the same duties, as a full-time employee or part-time employee.
Can I Refuse The Employee’s Request?
Notwithstanding the above, employers can refuse an employee’s casual conversion request where:
- the employee’s pattern of work would not fit the definition of part-time or full-time employment without significant adjustment;
- it is reasonably foreseeable that the employee’s position will cease to exist within the next 12 months;
- it is reasonably foreseeable that the hours of work, or days of work, will change significantly within the next 12 months; or
- there are other reasonable grounds for refusal which are based on facts which are known or reasonably foreseeable.
Obligation On Employers
All new casual employees, employed after 1 October 2018, must be provided with a copy of the model casual conversion clause within the first 12 months of employment, irrespective of whether the casual employee’s employment can be classified as ‘regular’ or not.
For those casual employees employed as at or prior to1 October 2018, employers must provide them with a copy of the clause by 1 January 2019.
Employers who employ staff under a modern award should review their award (here) to determine whether they are affected.
Affected employers should notify existing casual employees as soon as possible by providing all casual employees with an electronic copy of the clause. All new casual employees should be provided with a copy of the clause upon commencement of their employment with their employment documentation.
By way of example, click here to access clause 13.5 of the Fast Food Industry Award 2010, in full.