The Full Bench of the Fair Work Commission recently determined to make a number of amendments to modern awards relating to casual and part-time employees.
The changes to the modern awards are as follows:
Changes sought to the part-time employment provision in the Social, Community, Home Care and Disability Services Industry Award 2010 to enable an employer and employee to agree not to fix the employee’s hours if the employee was engaged in individualised client services under the NDIS were rejected. This was in part because the award currently enables employers and employees to agree to work different numbers of hours in different weeks, or at particular times of the year and there was no evidence of significant difficulty in getting an agreement.
The new casual conversion clause for modern awards will provide that:
In order for any refusal of a conversion request to be reasonable, the refusal must be based on facts which are known or reasonably foreseeable, and not based on speculation or some general lack of certainty about the employee’s future employment. The consultation with the employee about the conversion request is to discuss the employee’s circumstances, the circumstances of the business and whether the existing arrangements can be accommodated under the part-time or full-time provisions in the award. Where the employee’s existing casual work pattern i.e. the days and hours can be accommodated under the part-time hours in the award, it is unlikely an employer will have “reasonable grounds” to refuse the conversion. However, if for example in the award there are restrictions on when part-time hours can be worked that would restrict the hours, times or days the casual has been working, then the employer may have reasonable grounds to reject the conversion request. Similarly, if there are operational changes that mean the employee’s pattern of hours or number of hours is likely to change or reduce, this will be a reasonable ground for refusal. The refusal and the reasons for it must be communicated to the employee in writing within 21 days of the request being made. If the employee does not accept the employer’s reasons for refusal, this will constitute a dispute that can be dealt with under the relevant award’s dispute resolution procedure.
Employers whose casual employees are covered by one of the 85 modern awards to be amended must notify those casual employees within 12 months of their employment commencing that they are entitled to request to have their employment converted from casual employment to part-time of full-time employment. Notably, this includes awards applying in industries that have traditionally employed large numbers of casual employees, including the Amusement, Events and Recreation Award 2010, Fast Food Industry Award 2010, General Retail Industry Award 2010, Restaurant Industry Award 2010, and Social, Community, Home Care and Disability Services Industry Award 2010. A full list of those awards that will be varied to include the model clause is available here.
The Full Bench has invited further submissions on the draft casual conversion clause by 2 August 2017. If any party requests a hearing in order to give oral submissions to supplement a written submission, this will be arranged. The further decision by the Full Bench on the final form of the award variation is also likely to address the need to notify existing casual employees who have been systematically engaged for more than 12 months.
Clients should seek specific advice about the effect of any award variation on their operations including, for example, whether any enterprise agreement in place incorporates a modern award and/or “more beneficial” award variations.
Employers who engage casual employees in the affected industries should review their workforce to determine where there are employees for whom working hours are reasonably consistent and predictable to determine the feasibility of converting those employees to part-time or full-time employment in order to prepare to respond to any requests for casual conversion. However, the prospect of a large number of employees seeking casual conversion may not be significant in certain industries due to the nature of the workforce, particularly where the benefits of the increased rate of pay for casual employment outweigh the benefits of permanent employment and paid leave benefits. This is likely to be so in traditionally low paid industries reliant on limited government funding, such as social and community care, and industries that are highly populated by students who are not seeking long-term employment, such as hospitality and fast food. However, even within those industries, there is likely to be a segment of the workforce that may still consider the prospect of permanent employment to be attractive.
Employers will also need to review rostering practices to ensure that the proposed amendments to provide minimum engagements for casual employees, and for part-time employees in the hospitality, clubs and restaurants industries, are able to be accommodated.