Posted September 24, 2018
From October 1 2018, new laws will apply to 28 modern awards, including the Hair and Beauty Award 2010, that contains a casual conversion provision. The new laws will give ‘regular’ casual employees the opportunity to elect to convert their employment to either full-time or part-time as they choose. Employers must provide their employees with a copy of the conversion clause within the first 12 months of the new casual employee’s first engagement. For existing employees, a copy of the casual conversion clause must be provided to them by 1 January 2019.
There is already a precedent of this clause coming into effect, including the example of Workpac Pty Ltd vs Skene. In this matter, the Full Bench of the Federal Court of Australia determined that a casually employed mining dump truck driver that was casually employed by a labour-hire company, was in fact entitled to paid annual leave – therefore determining that he was NOT a casual employee. This decision rested on the definition of a casual employee and the fact that the FIFO worker was assigned a 12-month roster in advance and expected to work these shifts as assigned. It is absolutely plausible that any salon owner could find themselves in the same situation and be forced to pay out their ‘casual staff member’ thousands of dollars in back-paid entitlements.
Part of the difficulty is that within the Fair Work Act there is not a clear definition of a ‘casual worker’ and this directly impacts the Hair and Beauty Award 2019. A casual employee, as defined by Common Law, can be defined as an employee that:
- Has been specifically informed to be considered a casual employee
- Has irregular or uncertain work patterns
- Has an ‘absence of a firm commitment to future work’
The absence of a clear definition of casual employment within the Fair Work Act is now likely to be the subject of conjecture and potential political debate. The employer in this matter is currently reviewing whether to appeal the decision to the High Court. HABA will keep its members updated of any concrete changes to these laws as they happen.
Salon owners often use ‘casual workers’ as part of their roster of staff. The concern is raised over salon processes like rosters and assigned shifts, as in the case of Workpac v Skene. If you are assigning your ‘casual staff’ regular hours in a pre-determined roster, this may open you up for potential claims. However, it is important to remember that a true casual staff member has the right to decline shifts or to say they are not available. In this instance, a staff member should be employed as ‘permanent part-time’ with all the entitlements that are encompassed in that.
Salon owners must carefully consider the below when dealing with casual employees:
- Are your workers correctly classified?
- Do you pay all employees in accordance with the appropriate Award rates?
- Are all your workers receiving all employment legislation entitlements (Leave, Superannuation etc.)?
- Are your policies and procedures up to date and compliant with current legislation?
- Do your contracts of employment reflect the requirements of the recent decisions?
If you have any concerns about how you are working with casual staff, it’s best to work out any issues ahead of the October 1st change in the law. Call the team at HABA on (02) 9221 9911 or email email@example.com for advice on your specific situation and assistance as a HABA member from our team of Industrial Relations experts.
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