Changes to Casual Employment: what do they mean for your club?

by bqmedia on July 14, 2021

By Matthew Bradford, Mullins Lawyers 07 3224 0353

The Fair Work Act 2009 (Cth) was recently amended, affecting workplace rights and obligations for casual employees throughout Australia. My colleague and Employment Law expert, Sam McIvor, explains the changes in this article – including the definition of casual employment, employees’ right to casual conversion, and the creation of casual loading offset – and what these mean for your bowls club. Given the high percentage of casual employees in bowls clubs, it is important that you understand the implications of these changes, and to seek clarity if you have any questions.

So, what exactly has changed?

The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (FW Amendment Act) introduced the following changes for casual employees:

1. Employers must provide casual employees with a Casual Employment Information Statement;
2. A new definition of casual employment is included in the FW Act;
3. Casual conversion to permanent employment; and
4. Casual loading offset.

1. Casual Employment Information Statement

1. Employers must provide every newcasual employee a Casual Employment Information Statement (CEIS) before, or as soon as possible after, they commence employment.
2. Small business employers must provide their existing casual employees a copy
   of the CEIS as soon as possible after 27 March 2021. Other employers must provide their existing casual employees
   a copy of the CEIS as soon as possible after 27 September 2021. A club would be considered a small business employer if they have fewer than 15 employees, and casual employees are not included unless they are engaged on a regular and systematic basis.
3. It appears that the CEIS will supplement the Fair Work Information Statement that employers already need to provide employees.

2. Casual Employment defined

1. For the first time, the FW Act has been amended to include the definition of a casual employee.
2. Under the new definition, a person is a casual employee if they accept an offer of employment from an employer knowing that there is no firm advance commitment to ongoing work with an agreed pattern of work.

iii. When determining whether a firm advance commitment to continuing and indefinite work exists, the FW Amendment Act requires a Court to have regard to only the following considerations:

• whether the employer can elect to offer work and whether the person can elect to accept or reject work;
• whether the person will work as required according to the needs of the employer;

• whether the employment is described as casual employment; and
• whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

Casuals who were employed immediately before 27 March 2021 and whose initial employment offer meets the new definition will continue to be casual employees under the FW Act.

3. Right to casual conversion

casual employees to determine whether they are eligible to be offered permanent employment.

4. Casual loading offset created

The FW Amendment Act also allows courts to set off any casual loading paid to an employee who has been misclassified as a casual
against subsequent claims for leave and other entitlements. However, setting off will only be permitted where:

• the engagement of the employee is specifically described as being for casual employment; and

• the employer has expressly stated that the casual loading is being paid to compensate the employee for not having one or more of those entitlements.

Importantly, the setting off provisions can be applied retrospectively.
These setting off provisions provide a safeguard for misclassified ‘casual’ employees who do not meet the statutory definition. This circumvents the Full Federal Court’s decision in Workpac v Rossato where a narrow view was adopted as to an employer’s inability to offset casual loading against permanent entitlements such as annual leave.

What should your bowls club do now?

i. Employers should immediately review the existing contractual terms with their ‘casual’ employees, to determine whether it meets the statutory definition of casual employment. In most cases, casual contract terms will require careful drafting to ensure compliance.

ii. Separately, your club should also commence assessing your casual workforce to determine which casual employees should be made conversion offers to permanent employment during the six month transition period ending 27 September 2021.