ADA HR Feature

ADA HR FEATURE Casual Conversion

Update and Reminder

In March 2021, the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021 (Bill) passed Parliament. The Bill introduced several changes to casual employment, including providing a statutory mechanism for casual conversion.

Prior to these changes, there was no universal entitlement to casual conversion, rather, employees covered by a modern award (such as the Health Professionals and Support Services Award 2020) (HPSS Award) were able to request casual conversion if they met the eligibility criteria outlined in the award. Now, the Fair Work Act 2009 (FW Act) requires employers to proactively offer casual conversion to eligible employees. This applies to all employees in the practice, not just those covered by a modern award. There is a transitional period, which ends on 27 September, to allow employers time to make assessments as to whether they need to offer casual conversion. Practices must therefore determine who is eligible, and make offers of conversion prior to this date.

Who needs to make an offer? The changes apply to national system employers, which are those that fall under the national workplace relations laws. Practices operating as sole traders, unincorporated partnerships, unincorporated trusts and incorporated associations that are not trading or financial corporations in Western Australia are covered by the Western Australia State System instead, and are therefore not covered by the changes implemented in the Bill. Small businesses, meaning practices with fewer than 15 employees, are also excluded from needing to make an offer. Employees employed in a small business retain the right to request casual conversion, however the administrative burden of having to actively offer conversion is removed. Practices with 15 or more employees are required to make offers of casual conversion to eligible employees. Who is an eligible employee? The Bill defines an eligible employee as someone who: • has been employed by the employer for a period of 12 months beginning the day the employment started; and • 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 fulltime employee or a parttime employee (as the case may be). If employees meet the above criteria, an offer of casual conversion must be made within 21 days of the employee reaching their 12 month anniversary, unless an exemption applies.

For further information or assistance with leave entitlements in your practice, please do not hesitate to contact the ADA HR

Advisory Service on 1300 232 462.

When can a practice choose not to make an offer? There are also certain instances in which a practice with more than 15 employees is not required to offer conversion. This includes where a reasonable business ground exists. These include: • the employee’s position will cease to exist in the next 12 months; • the hours of work which the employee is required to perform will be significantly reduced; • there will be a significant change in either or both of the following: • the days on which the employee’s hours of work are required to be performed • the times at which the employee’s hours of work are required to be performed which cannot be accommodated within the days/times the employee is available to work • making an offer of conversion would not comply with a recruitment or selection process required by law. If a practice elects not to make an offer of casual conversion, it must still notify the employee of its decision in writing.

Making an offer When making an offer of casual conversion, practices must ensure the following criteria are met: • The offer must be in writing; and • Be an offer for the employee to convert to either parttime or full time employment (consistent with their hours of work during the relevant period); and • Be provided to the employee within 21 days after they reach their 12-month anniversary. Before making the offer in writing, the practice will need to meet with the employee and discuss the specific details of the offer. Once an offer is made, the employee has 21 days to accept the offer in writing. If the employee does not respond, it is taken that they have rejected the offer.

Next steps Given the transitional period comes to an end on 27 September, practices should be proactive and ensure that, if required, they undertake assessments of casual employees to assess eligibility, and make offers to eligible employees before this date.