Know Your Rights: Causal Conversion
The SDA and the union movement have been campaigning for better entitlements for Casual Employees.
This has resulted in new Casual conversion rights under the Fair Work Act (2009) in a ruling by the Fair Work Commission.
This means, if you’re currently a casual you may be able to convert into a permanent (part-time or full-time) employee if you wish.
If you’re an existing casual who was hired before 27 March 2021, the changes to the legislation means that your employer had to proactively make an offer to any eligible casual employee to convert to permanent employment.
Your employer (except small businesses) had until 27 September 2021 in which to comply with the new legislative requirements and notify eligible employees whether or not an offer will be made. This includes where a casual employee would not have reached 12 months employed as well.
Your employer needed to make an offer of casual conversion in writing before 27 September 2021 or within 21 days after 12 months of employment has occurred, whichever is later.
Once the offer has been made, you have 21 days to respond to the employer in writing, accepting or declining the offer.
If the employer has determined you are not eligible to covert to permanent employment, they still had to provide this to you in writing by 27 September 2021 or within 21 days after 12 months of employment has occurred, whichever is later.
If you’re a new casual hired on or after 27 March 2021, the changes to legislation now mean that you are a casual employee when you are offered a job and the employer makes no firm advance commitment that the work will continue indefinitely with an agreed pattern of work. Your employer (except small businesses) now has to proactively make an offer to eligible casual employees to convert to permanent employment after 12 months of employment.
Your employer must make an offer of casual conversion in writing within 21 days after 12 months of employment has occurred. Once the offer has been made, you have 21 days to respond to the employer in writing, accepting or declining the offer. If the employer has determined you are not eligible to convert to permanent employment, they still have to provide this to you in writing within 21 days after 12 months of employment has occurred.
You will also be provided the Casual Employment Information Statement when you start work or as soon practical after starting.
To be eligible to be offered to convert to permanent employment the casual employee will have to satisfy the following three criteria:
- have at least 12 months service with the same employer; and
- within the last 6 months, have been working a regular patter of hours on an ongoing basis which they could continue working without significant adjustment on a permanent basis; and
- there are no reasonable grounds on which an offer should not be made by the employer to the employee
Some of the reasons that the employer would not need to offer the casual employee casual conversion are if the following are based on facts known or reasonably foreseeable at the time of not making the offer:
- the position will cease to exist in the following 12 months;
- the hours of work would be significantly reduced in the following 12 months;
- the days or times which they are required to work would be changed.
The offer that a casual employee will receive will be a letter outlining either:
- An offer of full time employment if the employee has worked a regular pattern of full time hours of an average of 38 hours a week; or
- An offer of part time employment if the employee has worked a regular pattern of hours of an average of less than 38 hours a week.
All Casual employees have the right to request to become a permanent employee if they are an eligible casual employee and satisfy all the following:
- the employee has not refused an offer for permanent employment in the last 6 months; and
- the employer has not notified the employee in the last 6 months that they will not be offered permanent employment on reasonable grounds; and
- the employer has not refused a request from the employee to become a permanent employee in the last 6 months.
The employee must make the request in writing and within 21 days after completing 12 months of employment. The employer must respond within 21 days and can refuse the request on reasonable grounds which they have to provide those reasons.
If you work under an Award (i.e. Fast Food Award, General Retail Industry Award or Storage Services and Wholesome Award) or an EBA (i.e. Coles, KFC, Woolworths, Kmart etc.) these new changes are in addition to any other casual conversion rights under the relevant Award or Agreement you work under which may mean you still have more superior rights to request conversion to permanent employment.
To find out more about the requirements of the company to make you an offer and your ability to request to be a permanent team member or if you disagree with your employer about the casual conversion process please speak to your SDA Shop Steward, SDA Organiser or contact your local SDA branch for assistance.