As part of the four yearly review of modern awards, the FWC has decided to include in almost every modern award, a clause permitting long term regular casuals to apply for conversion to permanent employees. Apart from a couple of exceptions, it is expected the awards will have these provisions in them by year’s end. 

The FWC‘s proposed standard clause uses the term “regular casual employee” and describes that person as essentially an employee with a discernible regularity about their employment, and a reasonable expectation of on-going employment. In most cases it is likely that the period over which this pattern of working will be measured will be twelve months.  

One area of concern is the prohibition on employers engaging and/or re-engaging (which includes a refusal to reengage), or reducing or varying hours, of casuals in order to avoid any right or obligation under this clause. In some industries, those variations might look like attempts to avoid this new requirement on employers, but in reality be a direct reaction to the ordinary business cycle.  

That is a sleeper which could well lead to disputes. 

If an employer refuses a conversion request, then that decision can be challenged in the FWC, and possibly, overturned.  

Another issue that employers need to come to grips with is the way to manage the service period as a casual with various entitlements that permanent employees accrue based on length of service.  

The legislation provides some guidance in this area, for example, in determining service for the purposes of the unfair dismissal regime. But recent cases also indicate that severance pay can be affected by service periods as a casual. So calculating the qualifying employment period for these issues may not be so clear cut and will need to be managed to avoid double-dipping. 

This FWC decision is extensive and covers a wide range of matters in relation to casual employment and part time employment. The issues are not all uniformly dealt with and any impact will depend on the modern award covering the employment concerned.

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