By Hannah Pelka-Caven

In October 2018, the majority of modern awards were amended to include a model casual conversion clause. This clause has significant implications for employers of ‘regular casual employees’, which includes an employee who works ‘a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time or part-time employee’.

Whilst the majority of modern awards now contain the model term, a modified clause was inserted into a small portion of awards, and several awards do not contain the clause. Each award should be reviewed individually, as the requirements differ from the model term which is discussed in this article.

Under the model clause employers were required to provide a copy of the relevant casual conversion clause to all casual employees employed as at 1 October 2018, by 1 January this year.

It also requires that any casual employees hired after 1 October 2018 be provided with the relevant clause within 12 months of their employment commencing.

This model clause provides that a regular casual who has worked equivalent full-time hours over the preceding 12 months’ casual employment can request to have their employment converted to full-time employment, whilst a regular casual working less than full-time hours can request conversion to part-time employment. The request must be made in writing, and any refusal, along with the reasons for the refusal must be provided by the employer within 21 days.

Can employers refuse a request for casual conversion?

Employers may only refuse a request for casual conversion under the model clause if it is reasonable to do so. Reasonable grounds for refusal include that:

• it would require a significant adjustment of the casual employee’s hours to be engaged as a full-time or part-time employee;
• it is known or reasonably foreseeable that the position will cease to exist within the next 12 months;
• it is known or reasonably foreseeable that the hours of work required to be performed will be significantly reduced in the next 12 months; or
• it is known or reasonably foreseeable that there will be a significant change in the days and/or times the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days or hours in which the employee is available to work.

Employers are not permitted to vary or reduce the number of hours a casual works in order to avoid their obligations under this clause.

What employers must do

While a small portion of modern awards do not contain this clause, for example the Educational Services (Teachers) Award 2010, employers should still carefully review their award coverage to determine if their casual employees are affected by the clause.

If you currently employ casual employees covered by an award containing a casual conversion we recommend the following:

• An email be sent to all casual employees covered by a relevant award informing them of their right to casual conversion and providing the relevant casual conversion clause.
• Ensure that you update your key employment documents such that when you hire a new casual employee covered by a relevant award, that you include a copy of the casual conversion clause from the award in their employment pack (this could also contain their contract, tax file number and super information).
• Ensure that any conversion request is carefully considered in line with the requirements which apply to any refusal.