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Schedule 1—Casual employees

Schedule 1 Casual employees

Part 1 Main amendments

Fair Work Act 2009

1  Section 12

Insert:

casual employee : see section 15A.

2  At the end of Division 3 of Part 1-2

Add:

15A   Meaning of casual employee

             (1)  A person is a casual employee of an employer if:

                     (a)  an offer of employment made by the employer to the person is made 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; and

                     (b)  the person accepts the offer on that basis; and

                     (c)  the person is an employee as a result of that acceptance.

             (2)  For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:

                     (a)  whether the employer can elect to offer work and whether the person can elect to accept or reject work;

                     (b)  whether the person will work only as required;

                     (c)  whether the employment is described as casual employment;

                     (d)  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.

Note:          Under Division 4A of Part 2-2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full-time employment or part-time employment.

             (3)  To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.

             (4)  To avoid doubt, the question of whether a person is a casual employee of an employer is to be 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.

             (5)  A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until:

                     (a)  the employee’s employment is converted to full-time or part-time employment under Division 4A of Part 2-2; or

                     (b)  the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.

3  After Division 4 of Part 2-2

Insert:

Division 4A Offers and requests for casual conversion

Subdivision A Application of Division

66A   Division applies to casual employees etc.

             (1)  This Division applies in relation to an employee who is a casual employee.

             (2)  A reference in this Division to full-time employment or part-time employment is taken not to include employment for a specified period of time, for a specified task or for the duration of a specified season.

Subdivision B Employer offers for casual conversion

66B   Employer offers

             (1)  Subject to section 66C, an employer must make an offer to a casual employee under this section if:

                     (a)  the employee has been employed by the employer for a period of 12 months beginning the day the employment started; and

                     (b)  during at least the last 6 months of that period, the employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee or a part-time employee (as the case may be).

Note:          An employee who meets the requirements of paragraphs (a) and (b) would also be a regular casual employee because the employee has been employed by the employer on a regular and systematic basis.

             (2)  The offer must:

                     (a)  be in writing; and

                     (b)  be an offer for the employee to convert:

                              (i)  for an employee that has worked the equivalent of full-time hours during the period referred to in paragraph (1)(b)—to full-time employment; or

                             (ii)  for an employee that has worked less than the equivalent of full-time hours during the period referred to in paragraph (1)(b)—to part-time employment that is consistent with the regular pattern of hours worked during that period; and

                     (c)  be given to the employee within the period of 21 days after the end of the 12 month period referred to in paragraph (1)(a).

Note:          If an offer is accepted, the conversion to full-time employment or part-time employment has effect for all purposes (see section 66K ).

             (3)  For the purposes of paragraph (2)(b), in determining whether an award/agreement free employee has worked the equivalent of full-time hours, regard may be had to the hours of work of any other full-time employees of the employer employed in the same position as (or in a position that is comparable to) the position of the employee.

66C   When employer offers not required

             (1)  Despite section 66B, an employer is not required to make an offer under that section to a casual employee if:

                     (a)  there are reasonable grounds not to make the offer; and

                     (b)  the reasonable grounds are based on facts that are known, or reasonably foreseeable, at the time of deciding not to make the offer.

             (2)  Without limiting paragraph (1)(a), reasonable grounds for deciding not to make an offer include the following:

                     (a)  the employee’s position will cease to exist in the period of 12 months after the time of deciding not to make the offer;

                     (b)  the hours of work which the employee is required to perform will be significantly reduced in that period;

                     (c)  there will be a significant change in either or both of the following in that period:

                              (i)  the days on which the employee’s hours of work are required to be performed;

                             (ii)  the times at which the employee’s hours of work are required to be performed;

                            which cannot be accommodated within the days or times the employee is available to work during that period;

                     (d)  making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory.

             (3)  An employer must give written notice to a casual employee in accordance with subsection (4) if:

                     (a)  the employer decides under subsection (1) not to make an offer to the employee; or

                     (b)  the employee has been employed by the employer for the 12 month period referred to in paragraph 66B(1)(a) but does not meet the requirement referred to in paragraph 66B(1)(b).

Note:          If an employer fails to give notice to a casual employee, the employee has a residual right to request conversion to full-time or part-time employment in certain circumstances: see Subdivision C.

             (4)  The notice must:

                     (a)  advise the employee that the employer is not making an offer under section 66B; and

                     (b)  include details of the reasons for not making the offer (including any grounds on which the employer has decided to not make the offer); and

                     (c)  give the notice to the employee within 21 days after the end of the 12 month period referred to in paragraph 66B(1)(a).

66D   Employee must give a response

             (1)  The employee must give the employer a written response to the offer within 21 days after the offer is given to the employee, stating whether the employee accepts or declines the offer.

             (2)  If the employee fails to give the employer a written response in accordance with subsection (1), the employee is taken to have declined the offer.

66E   Acceptances of offers

             (1)  If the employee accepts the offer, the employer must, within 21 days after the day the acceptance is given to the employer, give written notice to the employee of the following:

                     (a)  whether the employee is converting to full-time employment or part-time employment;

                     (b)  the employee’s hours of work after the conversion takes effect;

                     (c)  the day the employee’s conversion to full-time employment or part-time employment takes effect.

             (2)  However, the employer must discuss with the employee the matters the employer intends to specify for the purposes of paragraphs (1)(a), (b) and (c) before giving the notice.

             (3)  The day specified for the purposes of paragraph (1)(c) must be the first day of the employee’s first full pay period that starts afterthe day the notice is given, unless the employee and employer agree to another day.

Subdivision C Residual right to request casual conversion

66F   Employee requests

             (1)  A casual employee may make a request of an employer under this section if:

                     (a)  the employee has been employed by the employer for a period of at least 12 months beginning the day the employment started; and

                     (b)  the employee has, in the period of 6 months ending the day the request is given, worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee or a part-time employee (as the case may be); and

                     (c)  all of the following apply:

                              (i)  the employee has not, at any time during the period referred to in paragraph (b), refused an offer made to the employee under section 66B;

                             (ii)  the employer has not, at any time during that period, given the employee a notice in accordance with paragraph 66C(3)(a) (which deals with notice of employer decisions not to make offers on reasonable grounds);

                            (iii)  the employer has not, at any time during that period, given a response to the employee under section 66G refusing a previous request made under this section;

                            (iv)  the request is not made during the period of 21 days after the period referred to in paragraph 66B(1)(a).

             (2)  The request must:

                     (a)  be in writing; and

                     (b)  be a request for the employee to convert:

                              (i)  for an employee that has worked the equivalent of full-time hours during the period referred to in paragraph (1)(b)—to full-time employment; or

                             (ii)  for an employee that has worked less than the equivalent of full-time hours during the period referred to in paragraph (1)(b)—to part-time employment that is consistent with the regular pattern of hours worked during that period; and

                     (c)  be given to the employer.

Note:          If a request is accepted, the conversion to full-time employment or part-time employment has effect for all purposes (see section 66K).

             (3)  For the purposes of paragraph (1)(b), in determining whether an award/agreement free employee has worked the equivalent of full-time hours, regard may be had to the hours of work of any other full-time employees of the employer employed in the same position as (or in a position that is comparable to) the position of the employee.

66G   Employer must give a response

                   The employer must give the employee a written response to the request within 21 days after the request is given to the employer, stating whether the employer grants or refuses the request.

66H   Refusals of requests

             (1)  The employer must not refuse the request unless:

                     (a)  the employer has consulted the employee; and

                     (b)  there are reasonable grounds to refuse the request; and

                     (c)  the reasonable grounds are based on facts that are known, or reasonably foreseeable, at the time of refusing the request.

             (2)  Without limiting paragraph (1)(b), reasonable grounds for refusing the request include the following:

                     (a)  it would require a significant adjustment to the employee’s hours of work in order for the employee to be employed as a full-time employee or part-time employee;

                     (b)  the employee’s position will cease to exist in the period of 12 months after giving the request;

                     (c)  the hours of work which the employee is required to perform will be significantly reduced in the period of 12 months after giving the request;

                     (d)  there will be a significant change in either or both of the following in the period of 12 months after giving the request:

                              (i)  the days on which the employee’s hours of work are required to be performed;

                             (ii)  the times at which the employee’s hours of work are required to be performed;

                            which cannot be accommodated within the days or times the employee is available to work during that period;

                     (e)  granting the request would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory.

             (3)  If the employer refuses the request, the written response under section 66G must include details of the reasons for the refusal.

66J   Grants of requests

             (1)  If the employer grants the request, the employer must, within 21 days after the day the request is given to the employer, give written notice to the employee of the following:

                     (a)  whether the employee is converting to full-time employment or part-time employment;

                     (b)  the employee’s hours of work after the conversion takes effect;

                     (c)  the day the employee’s conversion to full-time employment or part-time employment takes effect.

             (2)  However, the employer must discuss with the employee the matters the employer intends to specify for the purposes of paragraphs (1)(a), (b) and (c) before giving the notice.

             (3)  The day specified for the purposes of paragraph (1)(c) must be the first day of the employee’s first full pay period that starts afterthe day the notice is given, unless the employee and employer agree to another day.

             (4)  To avoid doubt, the notice may be included in the written response under section 66G.

Subdivision D Other provisions

66K   Effect of conversion

                   To avoid doubt, an employee is taken, on and after the day specified in a notice for the purposes of paragraph 66E(1)(c) or 66J(1)(c), to be a full-time employee or part-time employee of the employer for the purposes of the following:

                     (a)  this Act and any other law of the Commonwealth;

                     (b)  a law of a State or Territory;

                     (c)  any fair work instrument that applies to the employee;

                     (d)  the employee’s contract of employment.

66L   Other rights and obligations

             (1)  An employer must not reduce or vary an employee’s hours of work, or terminate an employee’s employment, in order to avoid any right or obligation under this Division.

Note:          The general protections provisions in Part 3-1 also prohibit the taking of adverse action by an employer against an employee (which includes a casual employee) because of a workplace right of the employee under this Division.

             (2)  Nothing in this Division:

                     (a)  requires an employee to convert to full-time employment or part-time employment; or

                     (b)  permits an employer to require an employee to convert to full-time employment or part-time employment; or

                     (c)  requires an employer to increase the hours of work of an employee who requests conversion to full-time employment or part-time employment under this Division.

66M   Disputes about the operation of this Division

Application of this section

             (1)  This section applies to a dispute between an employer and employee about the operation of this Division.

             (2)  However, this section does not apply in relation to the dispute if any of the following includes a term that provides a procedure for dealing with the dispute:

                     (a)  a fair work instrument that applies to the employee;

                     (b)  the employee’s contract of employment;

                     (c)  another written agreement between the employer and employee.

Note:          Modern awards and enterprise agreements must include a term that provides a procedure for settling disputes in relation to the National Employment Standards (see paragraph 146(b) and subsection 186(6)).

Resolving disputes

             (3)  In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level, by discussions between the parties.

FWC may deal with disputes

             (4)  If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the dispute to the FWC.

             (5)  If a dispute is referred under subsection (4):

                     (a)  the FWC must deal with the dispute; and

                     (b)  if the parties notify the FWC that they agree to the FWC arbitrating the dispute—the FWC may deal with the dispute by arbitration.

Note:          For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate, including by mediation, conciliation, making a recommendation or expressing an opinion (see subsection 595(2)).

Representatives

             (6)  The employer or employee to the dispute may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of resolving, or the FWC dealing with, the dispute.

Note:          A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).

4  Division 12 of Part 2-2 (heading)

Repeal the heading, substitute:

Division 12 Fair Work Ombudsman to prepare and publish statements

5  At the end of Division 12

Add:

125A   Fair Work Ombudsman to prepare and publish Casual Employment Information Statement

             (1)  The Fair Work Ombudsman must prepare a Casual Employment Information Statement. The Fair Work Ombudsman must publish the Statement in the Gazette.

Note:          If the Fair Work Ombudsman changes the Statement, the Fair Work Ombudsman must publish the new version of the Statement in the Gazette.

             (2)  The Statement must contain information about casual employment and offers and requests for casual conversion under Division 4A of Part 2-2, including the following:

                     (a)  the meaning of casual employee under section 15A;

                     (b)  an employer offer for casual conversion must generally be made to certain casual employees within 21 days after the employee has completed 12 months of employment;

                     (c)  an employer can 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;

                     (d)  certain casual employees will also have a residual right to request casual conversion;

                     (e)  the FWC may deal with disputes about the operation of that Division.

             (3)  The Casual Employment Information Statement is not a legislative instrument.

             (4)  The regulations may prescribe other matters relating to the content or form of the Statement, or the manner in which employers may give the Statement to employees.

125B   Giving new employees the Casual Employment Information Statement

             (1)  An employer must give each casual employee the Casual Employment Information Statement before, or as soon as practicable after, the employee starts employment as a casual employee with the employer.

             (2)  Subsection (1) does not require the employer to give the employee the Statement more than once in any 12 months.

Note:          This is relevant if the employer employs the employee more than once in the 12 months.

6  After section 545

Insert:

545A   Orders relating to casual loading amounts

             (1)  This section applies if:

                     (a)  a person is employed by an employer in circumstances where the employment is described as casual employment; and

                     (b)  the employer pays the person an identifiable amount (the loading amount ) paid to compensate the person for not having one or more relevant entitlements during a period (the employment period ); and

                     (c)  during the employment period, the person was not a casual employee; and

                     (d)  the person (or another person for the benefit of the person) makes a claim to be paid an amount for one or more of the relevant entitlements with respect to the employment period.

Note:          For the purposes of paragraph (d), another person making a claim for the benefit of the person could include an inspector or an employee organisation.

             (2)  When making any orders in relation to the claim, a court must reduce (but not below nil) any amount payable by the employer to the person for the relevant entitlements (the claim amount ) by an amount equal to the loading amount.

Note:          If the claim is below a certain amount, the person may choose to use the small claims procedure: see section 548.

             (3)  Despite subsection (2), the court may reduce the claim amount by an amount equal to a proportion (which may be nil) of the loading amount the court considers appropriate, having regard only to:

                     (a)  if a term of the fair work instrument or contract of employment under which the loading amount is paid specifies the relevant entitlements the loading amount is compensating for and specifies the proportion of the loading amount attributable to each such entitlement—that term (including those proportions); or

                     (b)  if such a term specifies the relevant entitlements the loading amount is compensating for but does not specify the proportion of the loading amount attributable to each such entitlement—that term and what would be an appropriate proportion of the loading amount attributable to each of those entitlements in all the circumstances; or

                     (c)  if paragraph (a) or (b) does not apply—the entitlements referred to in subsection (4) and what would be an appropriate proportion of the loading amount attributable to each of those entitlements in all the circumstances.

             (4)  A reference in this section to a relevant entitlement is a reference to an entitlement under the National Employment Standards, a fair work instrument or a contract of employment to any of the following:

                     (a)  paid annual leave;

                     (b)  paid personal/carer’s leave;

                     (c)  paid compassionate leave;

                     (d)  payment for absence on a public holiday;

                     (e)  payment in lieu of notice of termination;

                      (f)  redundancy pay.

             (5)  To avoid doubt, an entitlement referred to in subsection (4) includes any such entitlement that has accrued but is untaken.

Part 2 Other amendments

Fair Work Act 2009

7  Section 12 (definition of long term casual )

Repeal the definition.

8  Section 12

Insert:

regular casual employee : a national system employee of a national system employer is a regular casual employee at a particular time if, at that time:

                     (a)  the employee is a casual employee; and

                     (b)  the employee has been employed by the employer on a regular and systematic basis.

9  Paragraph 23(2)(b)

Omit the words after “at that time,”, substitute “the employee is a regular casual employee of the employer”.

10  After paragraph 61(2)(b)

Insert:

                   (ba)  offers and requests for casual conversion (Division 4A);

11  Subparagraph 65(2)(b)(i)

Repeal the subparagraph, substitute:

                              (i)  is, immediately before making the request, a regular casual employee of the employer who has been employed on that basis for a sequence of periods of employment during a period of at least 12 months; and

12  After subsection 65(2)

Insert:

          (2A)  For the purposes of applying paragraph (2)(a) in relation to an employee who has had their employment converted under Division 4A of Part 2-2, any period for which the employee was a regular casual employee of the employer is taken to be continuous service for the purposes of that paragraph.

13  After subsection 67(1)

Insert:

          (1A)  For the purposes of applying subsection (1) in relation to an employee who has had their employment converted under Division 4A of Part 2-2, any period for which the employee was a regular casual employee of the employer is taken to be continuous service for the purposes of that subsection.

14  Paragraph 67(2)(a)

Repeal the paragraph, substitute:

                     (a)  the employee is, or will be, immediately before the date that applies under subsection (3), a regular casual employee of the employer who has been employed on that basis for a sequence of periods of employment during a period of at least 12 months; and

15  Subsection 87(1)

Omit “with his or her employer”, substitute “with an employer (other than periods of employment as a casual employee of the employer)”.

16  Subsection 87(2)

After “year of service”, insert “(other than periods of employment as a casual employee of the employer)”.

17  Subsection 96(1)

Omit “with his or her employer”, substitute “with an employer (other than periods of employment as a casual employee of the employer)”.

18  Subsection 96(2)

After “year of service”, insert “(other than periods of employment as a casual employee of the employer)”.

19  At the end of section 117

Add:

             (4)  A reference in this section to continuous service with the employer does not include periods of employment as a casual employee of the employer.

20  At the end of section 119

Add:

             (3)  A reference in this section to continuous service with the employer does not include periods of employment as a casual employee of the employer.

21  Paragraph 121(1)(a)

After “with the employer”, insert “(other than periods of employment as a casual employee of the employer)”.

22  Subparagraph 384(2)(a)(i)

Omit “on a regular and systematic basis”, substitute “as a regular casual employee”.