The National Employment Standards (NES) within the Fair Work Act 2009 (Cth) (FW Act) require employers to make an offer to eligible casual employees to convert to either full-time or part-time employment.

An employer must offer a casual conversion where they have been employed for a period of 12 months and they had worked a regular pattern of hours for the last 6 months. However, an employer can refuse to make an offer for casual conversion where there are reasonable grounds to do so.

In a recent decision, CPSU v TAFE NSW (2022), the Fair Work Commission (FWC) dealt with a dispute concerning the casual conversion of certain employees. The FWC had to consider whether the employer had reasonable grounds not to make casual conversion offers. The employer argued that state legislation requiring merit-based recruitment and promotion prevented the making of casual conversion offers in certain circumstances.

The FWC rejected the employer’s argument that the NES entitled casuals to move to permanent roles in newly-created positions that did not previously exist. The conversion rights applied to the existing role occupied by the casual. Conversion could not be seen as a new appointment or promotion. The FWC was satisfied that the relevant employees had already undergone a merits assessment when they interviewed as part of a competitive selection process and therefore, a conversion to permanent employment would not contravene the requirement. Conversion to permanency would not be considered a promotion because it was not a progression to a higher position within the workplace.

The FWC ruled that the employer’s policies and procedures will not determine the interpretation and application of the NES casual conversion rights.

You can find out more about casual conversion in the Employment Law Practical Handbook chapter, Casual employment.

On another note, there has been more movement on the Federal Government’s Secure Jobs, Better Pay Bill…

Secure Jobs, Better Pay Bill update

Last minute changes to Secure Jobs, Better Pay Bill will enable passage of FW Act amendments. These will achieve the following:

• Greater restrictions on employers being roped-in to a multi-employer bargaining process by a union without their consent: This will not be possible for small businesses with fewer than 20 employees and other employers during the first 9 months after their existing enterprise agreement expires. Only ‘reasonably comparable’ businesses can be roped-in. Employers with fewer than 50 employees will be able to exit the process more easily. The union’s right to veto a multi-enterprise bargain being put to an employee vote is more restricted. Civil construction is excluded from all streams of multi-enterprise bargaining.
• Greater restrictions on compulsory arbitration by the FWC: Bargaining disputes cannot be compulsorily arbitrated during the first 9 months of bargaining. Disputes over flexible work arrangements will need to be conciliated prior to arbitration unless there are exceptional circumstances.