Casual employment changes

Last updated 22 April 2024

There have been multiple changes to casual employment laws.

These include to:

  • how casual work is defined
  • the pathway to permanent employment
  • employee and employer responsibilities.

New casual employee definition

These changes start on 26 August 2024.

A new definition of ‘casual employee’ will be introduced to the Fair Work Act. Under this definition, an employee is only a casual if:

  • there isn’t a firm advance commitment to continuing and indefinite work, taking into account a number of factors, including the real substance, practical reality and true nature of the employment relationship
  • they're entitled to receive a casual loading or specific casual pay rate.

Employees who start as a casual, will stay casual until their employment status changes either through:

  • a conversion process or Fair Work Commission order, or
  • accepting an alternative employment offer and starting work on that basis.

The Fair Work Commission (the Commission) is the national workplace relations tribunal and registered organisations regulator.

Employees who were employed casually before 26 August 2024 will stay casuals under the new definition unless they transition to permanent employment.

Firm advance commitment

Whether there is a firm advance commitment to continuing and indefinite work needs to be assessed on:

  • the real substance, practical reality and true nature of the employment relationship
  • several other factors.

The other factors that must be considered include whether:

  • the employer can offer or not offer work to the employee (and whether this is happening)
  • the employee can accept or reject work
  • it's reasonably likely there will be future work available to the employer’s business, based on the nature of the business
  • there are full-time or part-time employees performing the same kind of work in the employer’s business as the work the employee usually performs
  • the employee has a regular pattern of work.

The above isn't a full list and other factors may apply.

Example: Casual employee

Josh starts as a bartender for a new summer pop-up restaurant.

Josh gets a roster each week with the shifts he’s being offered for the following week. He can then decide whether to accept those shifts or let his employer, Angela, know he can’t work them.

Josh also works varying shifts each week during summer, depending on when Angela needs him. Josh gets paid a casual loading of 25%. All the other employees at the pop-up restaurant are casual too.

Angela isn’t sure whether the restaurant will continue operating after summer.

Josh is a casual employee because:

  • there's no firm advance commitment to continuing and indefinite work
  • he's earning a casual pay rate.

Fixed term contracts

Casual employees can generally be hired on fixed term contracts.

However, an employee can’t be engaged as a casual on a fixed term contract if all of the following apply to them:

Example: Academic casual employee

Nina is a university lecturer in mathematics and is hired as a casual employee. She’s covered by the Higher Education Academic Staff Award and isn’t a state public sector employee.

Nina’s employer offers her a fixed term contract for a university semester. Because Nina is a casual, she can’t be engaged on a fixed term contract.

Nina raises this with her boss, Katie, who agrees to keep her on as a casual without a fixed term.

Nina and Katie agree to discuss changing to permanent employment at the end of the semester.

Changing from casual to permanent employment (casual conversion)

These changes start on 26 August 2024.

A new pathway will be introduced for eligible employees to change to permanent employment if they want to. This will replace the current rules for changing to permanent employment.

Employees will be able to notify their employer of their intention to change to permanent employment if the employee:

  • has been employed for at least 6 months (or 12 months if working for a small business employer)
  • believes they no longer meet the requirements of the new casual employee definition.

Employees can’t notify their employer of their intention to change to permanent employment if they:

  • are currently engaged in an ongoing dispute with their employer about casual conversion, or
  • in the last 6 months:
    • their employer refused a previous notification
    • they've resolved a dispute with their employer about casual conversion.

Employers responding to a casual conversion notification

Before responding, the employer must consult with the employee. This includes discussing certain details of what will change if the employer accepts the notification and the employee is no longer a casual employee.

A notification is the written notice an employee gives to an employer to convert to permanent employment.

The employer must respond in writing to the employee within 21 days of the employee giving the notification, either:

  • accepting the change, or
  • refusing the change.

Accepting the change

If the employer accepts the change, the response must include information about:

  • what the new employment status will be (for example, part-time or full-time)
  • the employee's new hours of work
  • when the change will take effect.

Example: Casual conversion

Mariana works as a casual cleaner at a large contract cleaning company.

Mariana has been working for her employer for 9 months. Mariana’s employer:

  • rosters Mariana to work every week from 8am to 1pm, Monday to Friday
  • as an increasingly busy cleaning company, has always been able to offer her work
  • believes it’s reasonably likely Mariana will have ongoing work available in the future
  • has part-time employees working in the same role.

Mariana believes that she no longer meets the definition of casual employee.

Mariana tells her manager, Victor, that she intends to change to part-time employment. She provides the notification to him in writing. Victor then organises a meeting with her.

In the meeting, Mariana explains why she believes she can change to part-time work. Victor agrees and they discuss how many hours Mariana would like to work. They also discuss when the change would happen.

Victor responds in writing within 21 days of Mariana providing the notification and agrees to the change to part-time employment. He includes details of her new working hours and when it will take effect.

Refusing the change

If the employer refuses the change the response must include the reasons for the refusal.

The employer can refuse the change if any of the following apply:

  • the employee still meets the definition of a casual
  • there are fair and reasonable operational grounds for not accepting the notification, including:
    • substantial changes would be required to the way in which work in the employer’s business is organised
    • there would be significant impacts on the operation of the employer’s business, or
    • substantial changes to the employee’s employment conditions would be reasonably necessary to ensure the employer doesn’t break any rules (such as in an award or agreement) that would apply to the employee.
  • accepting the change means the employer isn’t complying with a recruitment or selection process required by law.

Disputes about casual conversion

If a dispute arises and can’t be resolved at the workplace level, the dispute can be heard by the Commission.

The Commission would generally first try to resolve the dispute in an informal way. This includes by mediation or conciliation.

If the dispute still isn’t resolved, the Commission is able to arbitrate the dispute. This is a more formal process and can result in a legally binding decision.

Casual Employment Information Statement

These changes start on 26 August 2024.

The Casual Employment Information Statement (CEIS) is a document with information about employment conditions that an employer must provide to all new casual employees.

The CEIS will now need to be provided to:

  • new casual employees before, or as soon as possible after, the start of their employment
  • all casual employees employed by non-small businesses as soon as possible after
    • 6 months of employment
    • 12 months of employment and every subsequent period of 12 months of employment
  • all casual employees of small businesses as soon as possible after 12 months of employment.

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