Changes to Casual Employees in Fair Work Act Amendments February 2024

Employers who engage casual workers need to be aware of provisions of the Fair Work Legislation Amendment (Closing Loopholes) Bill No.2 (the Bill), amending the Fair Work Act 2009 (the Act).

The legislation now provides a 'General Rule' that seeks to define when a person can be legally regarded as a casual employee. The Act explains that a person can only be a casual employee if "The employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work".

In determining that characteristic, the legislation states the following matters should be considered:

• The real substance, practical reality and true nature of the employment;
• Mutual understanding between the parties, whether included in a contract or not;
• The inability of the employer not to offer work;
• The inability of an employee to accept or reject work;
• The reasonable likelihood of the business' future availability of work;
• Whether there are full-time or part-time employees performing the same work;
• Whether there is a regular pattern of work for the employee.

Clearly, individual cases to be disputed in the future before the Fair Work Commission will provide guidance on how these provisions are to be interpreted.

The Act also now provides that a casual employee may give their employer written notification to effectively challenge their status as a casual employee.

The notification by an employee cannot be given until the employee has been employed by their employer for at least six months, or if the employer is a small business employer, for a period of at least twelve months.

If an employer receives such a notification, they are required to provide a response within 21 days after the notification is given. The response must be in writing and confirming that the employer either accepts the notification or rejects the notification on one of the grounds specified in the Act.

If the employer accepts the notification, they must advise the employee:

• Whether their status will be changed to full-time or part-time;
• The employee's hours of work after the change takes effect;
• The date the employee's change takes effect.

As is the usual situation under the provisions of the Act, if a dispute about the employee's status arises, the parties must attempt to resolve the matter themselves at the workplace level.

If those discussions are unsuccessful, either party can refer the dispute to the Fair Work Commission.

The new legislative provisions will impact different industries and businesses based on their culture, employee expectations and organisation of work. Nothing in the new laws requires an employee to change or convert to permanent employment or permits an employer to require an employee to change or convert to permanent employment or require an employer to increase an employee's hours of work.?

We are currently considering the statutory impact on current Enterprise Agreements that provide limitations on casual work and whether these limitations are at odds with the new laws or rights.

Workforce Advisory can assist you and your payroll team with documentation and processes to ensure compliance and choice.

For queries about employment status, casual employees, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to [email protected]

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.