Posted September 27, 2021
A statutory entitlement to casual conversion was introduced into the National Employment Standards (NES) effective from 27 March 2021.
Under the NES provisions, unless the employer is a small business employer, an offer of conversion or notice that conversion will not be offered must be made within 21 days of the employee reaching 12 months of employment.
The NES does not require small business employers (i.e. employers who employ less than 15 employees) to offer casual conversion to employees, but employees may still request conversion under the residual right to request.
For more information about the residual right to request conversion, see Casual conversion to full-time or part-time employment under the NES.
When must an offer be made?
The obligation for an employer to offer a casual employee conversion to full-time or part-time employment arises where:
- The employee has been employed for 12 months;
- The last six months have been worked on a regular pattern of hours on an ongoing basis which the employee could continue to work on a full-time or part-time basis without significant adjustment; and
- There are no reasonable grounds not to make the offer based on known or reasonably foreseeable facts.
Where an employer is not offering casual conversion for the reasons set out in points 2 and 3 above, the NES requires an employer to inform the employee in writing of the details for why the employee is not being offered permanent employment.
NOTE – these obligations do not apply to WA employers who are not trading as a Pty Ltd company (e.g sole traders, partnerships, trusts). Different obligations apply depending upon whether an employer is a ‘small business employer’.
An employer is a ‘small business employer’ at a particular time if they employ fewer than 15 employees at that time. Only casual employees employed on a regular and systematic basis are included in the count.
By the 27th September 2021 (end of the ‘transition period’):
- An employer (other than a ‘small business employer’) must assess each casual employee who started employment before the 27th March 2021 against the conversion criteria and provide a written notice either offering conversion to part-time/full-time employment or explaining why they are not being offered conversion
- An employer must give each casual employee who started employment before the 27th March 2021 the Casual Employment Information Statement as soon as practicable.
From the 27th September, the ongoing provisions of the National Employment Standards (NES) apply:
- An employer (other than a ‘small business employer’) must assess each casual employee against the conversion criteria when they reach 12 months of employment and provide a written notice either offering conversion to part-time/full-time employment or explaining why they are not being offered conversion. This notice must be made within 21 days of the employee reaching 12 months of employment.
- An employer must give each casual employee the Casual Employee Information Statement before, or as soon as practicable after, the employee starts employment.
Templates for the notice of casual conversion rights have been published under “Downloads > Managing Your Staff > Templates” on the HABA website.
Conversion rights of casual employees of ‘small business employers’
Although a ‘small business employer’ does not have the obligation to assess casual employees and offer conversion, a casual employee (who has been employed for a period of 12 months) may still request conversion to permanent employment. If the employee makes a request, the employer must give the employee a written response within 21 days either approving the request or stating reasons why the request has been refused.
Further advice or assistance
Members are encouraged to call the HABA Workplace Advice Line on 02 9221 9911 to discuss their casual conversion obligations. Our advisers are ready to answer your questions. For advice on this topic, or any other workplace relations matter, please call the HABA Advice Line on 02 9221 9911.
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