Background

Following amendments to the Fair Work Act 2009 (Cth) (‘Act’) on 27 March 2021[1], with the introduction of a definition of ‘casual employee’ and casual conversion requirements, the Fair Work Commission(‘FWC’) has commenced undertaking a two-part process to alter modern awards to eliminate any inconsistency or uncertainty caused by the amendments.

The Full Bench of FWC completed the first stage of its review on 16 July 2021 by reviewing relevant terms of an initial group of 6 modern awards[2] and ruled on the changes required in order to make sure the awards comply with the amendments to the Act.

 

Outcomes of the Casual Terms Review

The amendments define a “casual employee” as one who accepts an “offer of employment made by the employer… on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person”[3]. An employee’s status as a casual is “assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party”.

In their ruling, the Full Bench maintained its view that definitions in the awards of “casual employee” or “casual employment” in the Awards are inconsistent with the new definition of a casual employee and this may give rise to “difficulties or uncertainty” as a result of different expressions of casual employees in s15A and in the awards.

Accordingly, the FWC has decided that replacing the existing definitions of casual employee in the Awards with either the definition in s15A, or by reference to this section, with the variations taking effect from 27 September 2021.

Finally, in relation to the National Employment Standard (‘NES’) casual conversion requirements the FWC held that the NES casual conversion entitlements were more beneficial than the model Award’s casual conversion clause and removed it, referencing the NES provisions in their place. 

In the course of conducting the review, the FWC found that the Fire Fighting Award does not provide for casual employment and no amendments were required.

 

What happens now?

The FWC will now vary the initial awards by producing draft determinations to reflect the outcomes of their Casual Terms Review. This will them provide a guideline for changes to the remaining Awards in stage two of the Review, which must be finalised by the deadline of 27 September 2021.

Employers are urged to review all casual employment arrangements in their business in the lad up to the \major changes to these clauses in the awards and also be mindful of the new definition which will require evidence of an employee being aware that there is no firm advance commitment to continuing work with an agreed pattern. This is best evidenced in writing by an appropriate and complaint employment agreement and contract

 

[1] Schedule 1 to the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth)

[2] General Retail Industry Award 2010 (Retail Award), Hospitality Industry (General) Award 2020 (Hospitality Award), Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award),  Educational Services (Teachers) Award 2020 (Teachers Award), Pastoral Award 2020 (Pastoral Award) and Fire Fighting Industry Award 2020 (Fire Fighting Award).

[3] Section 15A of the Fair Work Amendment ( Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth)