A series of new workplace laws commenced on 26 August 2024 which significantly impact employee rights. This includes:
- A new definition for “casual” employment;
- A right to “disconnect” from work;
- New protections for “independent contractors” and
- New regulations for “gig” workers.
In this blog, we give you a breakdown of the key changes affecting casual employees and what they mean for you.
Changes to Casual Employment
New Definition
As of 26 August 2024, there is a new definition of “casual employee”.
This definition has been inserted into the Fair Work Act 2009 to provide further certainty and clarity for employees and employers.
Up until 26 August 2024, casual employees have been defined as those without a firm commitment to ongoing work and who receive a casual loading or specific casual pay rates.
But it has always been unclear what a “firm commitment” looks like or what it means. The new definition aims to remedy the confusion and make it easier to identify when an employee is truthfully a ‘casual’.
So, who’s a casual employee?
The general rule is that an employee is a casual only if:
ï there is no firm advance commitment to continuing and indefinite work, and
ï they are entitled to a casual loading or a specific rate of pay under a Fair Work instrument or employment contract
[Note: An exception to this general rule applies to some academic and teaching staff at higher education institutions engaged on fixed-term contracts]
What is a firm advance commitment to continuing and indefinite work?
When assessing whether an employee has a firm advance commitment to continuing and indefinite work, the employer and employee need to consider the real substance, practical reality and true nature of the employment relationship.
In other words, what is the employment relationship like in practice? Do you as the employee have predictability with your work? Do you work predominately the same hours each week? Do you know, in advance, what your work schedule will look like from week to week? Or is it random and unknown?
Even if on paper it looks like you are a casual employee, the real substance, practical reality and true nature of the employment relationship may be something else entirely.
Relevant considerations
There are a variety of factors that need to be considered when assessing whether an employee has a firm advance commitment to work. These include:
- Whether your employer can choose to offer you work and likewise, whether you can choose not to accept the work offered (i.e. do you have the final say as to whether you work or will you get fired if you say no to shift?)
- Whether you will likely be offered future and continuing work because of the nature of the business (i.e. can you make a reasonable assumption that the workflow is consistent, and your employer will want you to work again next week?)
- Whether permanent employees (part-time or full-time) perform the same type of work that you do (if they do, it may be that your employment relationship is much the same as theirs and of a permanent nature); and
- Whether it can be said that you perform a regular pattern of work.
The hope with the introduction of these new changes is that it will make it easier for employees and employers alike to properly identify whether a worker is truthfully a ‘casual’ or not. Getting it wrong can have a major impact on your legal rights and entitlements. Casuals do not get paid annual or sick leave for instance – but part-time and full-time staff do.
If you were engaged as a casual before 26 August 2024
So, what does all this mean for you?
If you were engaged as a casual employee before the new definition commenced, you remain a casual unless you move to permanent employment.
If you are engaged as a casual after 26 August 2024
If you are engaged as a casual employee after 26 August 2024, then under the new definition of casual employee, you’ll remain a casual employee unless one of the following occurs:
- You convert to permanent employment under the current casual conversion rules;
- You choose permanent employment under the new and upcoming Employee Choice pathways (more about this below);
- The Fair Work Commission issues an order that confirms you are a permanent employee;
- A Fair Work Instrument specifies you are a permanent employee; or
- You accept an alternative offer of employment from your employment (e.g. full-time employment).
The new Employee Choice Pathway…coming in 2025
In addition to changing the definition of “casual employee” changes are also coming for the processes of casual conversion. These changes will not take effect until 26 February 2025 (for employers with more than 15 staff) or 26 August 2025 (for employers with less than 15 staff). We will provide further updates on these changes closer to launch day. For now, what’s relevant to note is that casual conversion will eventually be dealt with via an “Employee Choice Notification” process, which gives you the right to choose to convert to permanent status.
When the Employee Choice Notification process commences, casual employees who have worked for the same employer for at least 6 months (or 12 months in the case of a small business employer with less than 15 staff) will have the right to give their employer a written notice of their choice to convert to permanent status.
New powers for the Fair Work Commission
Currently, the Fair Work Commission can only assist parties by arbitration if there is a dispute about an employee’s casual employment status and if both parties agree to participate.
Under the new laws, the Fair Work Commission can arbitrate all disputes about the Employee Choice pathway.
The Commission will have the power to order things like:
- An employee is to continue to be treated as a casual employee; or
- An employee is to be immediately treated as a permanent employee.
These changes will provide employees with better options to challenge questionable workplace practices.
New Workplace Rights under General Protection laws
What is also significant about the new workplace laws is that they will be protected under the General Protection provisions of the Fair Work Act.
What this means is that if an employee exercises their right to:
- Give notice of their choice to convert to permanent employment under the Employee Choice process; or
- Receive a response from their employer under the Employee Choice process; or
- Receive and accept an offer under the existing casual conversion procedures; or
- Participate in a dispute about changing to permanent employment,
An employer cannot take adverse action against them. Adverse action might include: varying an employee’s hours, pattern of work, or dismissing them from their employment.
If adverse action is taken against you because you have exercised your workplace right, you may be eligible to pursue legal action against your employer.
What do the new laws mean for you?
If you are a permanent full-time or part-time employee, these changes don’t affect you.
If you are a casual employee, you should:
- Review your circumstances: If you have been a casual employee for a while now and are unsure if you wish to continue with that arrangement, you should familiarise yourself with the new laws and consider available options for requesting conversion to permanent employment status.
- Review Your Contract: Review your employment contract and consider whether it reflects fairly the real substance of the work you do in the day-to-day. If not, you may wish to take this opportunity to raise the matter with your employer and request updates to your employment terms.
- Seek advice: Get tailored advice on your specific circumstances and find out how the new laws might affect your role.
Understanding the new workplace laws and how they impact your rights as a casual employee is crucial for safeguarding your employment status. Whether you’re navigating these changes or facing other employment challenges, Rubix Legal is here to provide the clarity and support you need. Our team, led by Nikolina Palasrinne, is committed to delivering a modern, client-focused approach to legal services. Reach out to Rubix Legal today to ensure your rights are protected and you’re making informed decisions about your employment.
