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Reforming Casual Employment - Latest Changes to the FairWork Act 2009.

Updated: Sep 29, 2021

Casual employees are the backbone of many organisations within Australia, and a common way of hiring for a lot of SME's.

Until recently the FairWork Act 2009 never defined what a casual employee was, this was left to the courts, and as such a lot of confusion has arisen over the years as to when a casual is not a casual, and when they merge into being a permanent employee.

There have been many cases where this confusion and lack of monitoring of casual employees work patterns, have led small and medium businesses to resolve the confusion in court, like in the recent WorkPac case WorkPac Pty Ltd v Rossato [2020] FCAFC 84 .

Thankfully there has now been some clarity put in place. On the 27th March 2021, the FairWork Act 2009 has been amended and implemented with many significant changes around workplace rights and obligations to casual employees and their employers.

The FairWork Act 2009 now defines a casual employee as a person who is offered and accepts employment on the basis that the employer makes no firm advance commitment to continuing and indefinite work, according to an agreed pattern of work.

Under the FairWork Act 2009 for casual employees, the following areas are now taken into consideration:

  • Whether the employer can elect to offer work.

  • The ability of the employee to accept or decline work.

  • Whether the employee will work only as required, according to their employer's needs.

  • Whether the employment is described as casual employment.

  • Whether the employee is entitled to receive casual loadings or a specific rate of pay.

Casual Employee Information Statement

FairWork Australia has now published the casual employee information statement which contains the following information:

  • The new definition of a casual employee.

  • When an employer has to offer a casual conversion.

  • An employer can also decide not to make an offer for casual conversion, if there are reasonable grounds to do so, but the employer must notify the employee of these grounds.

  • When a casual employee can request a casual conversion.

  • Casual conversion entitlements of casual employees employed by small business employers.

  • The role of the Fair Work Commission when dealing with disputes about casual conversion.

It's important to note that the casual employee information statement must be provided by employers to each casual before, or as soon as practicable after they commence casual employment.

Small business employers must provide their existing casuals (eg; those employed prior to the commencement date of the 27th March 2021), with a copy of the casual employee information statement as soon as practicable after the commencement date.

All other employers must provide their casuals with a copy of the casual employee information statement as soon as practicable, by the end of the transition period (27th September 2021).

You can read the official statement from FairWork Australia here and also download the

Casual Employment Information Statement below.

Download • 304KB

If you or your business would like to take the stress out of understanding the changes to the FairWork Act 2009 for casual employees, and want assistance in how to implement these changes into your organisation, contact your local HR coach today!

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