Should your Employer have Offered you a Permanent Position?

For many, a casual job is a stepping stone towards finding a more settled permanent position.

And so, while grabbing a casual job in a desired industry is a good start, ultimately an employee, over time, may develop arrangements with an employer that are:

1. permanent in substance, having regard to days, times and commitments to the role; but
2. still technically a casual position.

To help employees in this situation who may despite the option of being recognised as permanent employees, the Fair Work Act has been amended to provide for “casual conversion”.

What is Casual Conversion?

Casual conversion is when a casual employee becomes a permanent employee.

Of course, in order for that to occur, the employee and their work arrangements will need to meet certain criteria.

Once those criteria are met, their employer must offer them a permanent position.

Who is Eligible for Casual Conversion?

If you work for an employer of fewer than 15 people, then your employer does not have the obligations we are about to set out. The casual conversion legislation does not apply to such small employers. Practically speaking if you want to try and transition to a permanent role with a small business employer, you should be engaging your employer in a discussion about whether that is possible, and if so how you might go about making it happen. We can assist you with preparing for such conversations if you need a helping hand to make the process smoother.

So, for applicable employers (i.e. those that have 15 or more employees), you will be eligible for casual conversion if:

1. you have been employed for 12 months or more;
2. during the last 6 months have worked a regular pattern of hours; and
3. you could continue that regular pattern as a full-time or part-time employee without significant adjustment.

Have you been Employed for 12 Months or More?

Your 12 months employment period will start when you are “employed”.

For casuals, even though your hours might be irregular or sporadic at first, this will be when:

• your written employment contract (if any) says your employment commenced;
• you agreed with your employer that you were “employed” (whether that was by phone call, email, handshake or otherwise); or
• if in doubt and you can’t pinpoint anything else, your first day of work is probably a safe bet.

In big picture terms, the question is how long you have been in an employment relationship.

A Regular Pattern of Hours

Looking back over the most recent 6 month period of your employment, have you had a regular pattern of hours?

Some times of work will clearly be considered a “regular pattern”. Others will clearly not be a regular pattern. And still others fall somewhere in between the two.

So, for example, if you have been employed for 8 hours on a Monday each week for the last 6 months then this is obviously a regular pattern of hours.

Similar, if over the last 6 months you have sometimes worked 2 hours, sometimes 20 hours, and are consistently spread over different days of the week, then it’s unlikely anyone would call that “a regular pattern”.

Put it this way: if nobody can arrange a mid-morning coffee with you 2 weeks in advance because they never know if you’ll be available, then you’re leaning towards being irregular – but each case is different and needs to be considered on its own facts

There are, however, some more challenging circumstances that will need case by case consideration.

What if you mostly work 5 hours on Monday, and then sometimes 3-7 hours on Wednesday, Thursday or Friday? Or perhaps you work regularly on Tuesdays, Wednesdays and Thursdays but your hours on those days might vary between 4 and 8 depending on how busy your employer is.

These types of arrangements are more difficult to figure out.

One way to help answer the question is to skip to the next part of the test.

Without Significant Adjustment

If you cannot realistically transition your employment from casual to part-time or full-time without “significant adjustment” then you do not meet the criteria.

This dovetails nicely with the regular hours test, since they are different sides of the same coin.

For example, while a part-time employee may not necessarily work identical hours every week, their work hours are normally consistent.

So if your hours are regularly cycling up and down, that might be an indication that “significant adjustment” would be required for you to become a true part-time employee.

The basic idea is that your casual employment should, in most substantial ways, reflect either part-time or full-time employment already. All you would be doing is changing the description and tinkering with some of the specifics to transition from one to the other.

So I’m Eligible for Casual Conversion – What Happens Now?

Generally speaking (subject to our section below) your employer is obliged to offer you a permanent position.

There is no set form to do this. However, the offer must:

• be in writing;
• be an offer for you (the casual employee) to convert to either full time or part time employment (depending on the equivalent hours you have been performing to date); and
• be given to you within 21 days of your 12 months employment anniversary.

In all material ways, the offer should be equivalent to the regular pattern you have already been working. You cannot demand any substantial improvement in your working conditions (though you might be able to negotiate that), neither can your employer take the opportunity to make your overall employment conditions worse.

Bear in mind, however, that there are some fundamental differences between casual and permanent employment, most relevantly:

1. access to accumulating leave entitlements (such as annual leave and personal/carer’s leave);
2. potentially less cash-in-hand per hour, to balance out (1) and account for the fact that you are no longer entitled to leave loading on your pay.

These things will generally be factored in so that the overall “package” remains essentially the same.

If your employer makes an offer of casual conversion, you are technically required to provide your employer with a written response within 21 days after you receive the offer.

What Happens Next?

Importantly, you do not have to accept an offer of casual conversion. It is, after all, just an offer and you can turn it down.

If you accept it, your employer should provide you with confirmation of the new terms (including full-time vs part-time, your hours, and your start date as a permanent employee) within 21 days.

When Does your Employer Not Need to Offer you Permanent Employment?

There is an “out” for your employer which means they do not need to make you an offer of permanent employment.

Your employer doesn’t have to offer you permanent employment (or accept your request for it – more on that below) if they believe there are “reasonable grounds” for not making an offer.

This might be things like:

1. knowing your hours will be changing soon;
2. knowing your position is about to become redundant;
3. your employer being obliged by law to follow a different process before taking on a permanent employee (e.g. in Government positions where advertising might be required).

While the laws set out some examples of what counts as “reasonable grounds”, these aren’t exclusive – so your employer can come up with other reasons it considers reasonable.

What if I’m Eligible but my Employer Hasn’t Made me an Offer?

Given this legislation hasn’t been widely advertised, there’s a good chance some employers don’t know it exists or haven’t implemented a good system to manage the process.

For that reason, the laws also allow you to proactively put the topic on the agenda.

Provided:

1. you haven’t refused a conversion offer in the last 6 months; and
2. your employer hasn’t informed you (in writing) that they have reasonable grounds for not making an offer,

then you can request casual conversion yourself.

Again, there is no set form for this. However, your request must:

• be in writing;
• be a request for you (the casual employee) to convert to either full time or part time employment (depending on the equivalent hours you have been performing to date); and
• be given to your employer.

Practically, you would first make sure that you meet the relevant criteria. Then you would arrange a discussion with the relevant person (perhaps your boss or an HR staff member, as appropriate), mention why you believe you would be eligible and ask them to make such an offer.

From there, you will carry on as a permanent employee.

Need Help? Employer not Cooperating?

If you are a casual employee and need help determining whether you are eligible for casual conversion, we can help. We can also assist with making requests for casual conversion as well as providing advice in relation to any defence your employer may raise to your request. At the end of the day, you want to be sure that you are not missing out on your entitlements. If you have been working as a casual for about 12 months, why not get in touch to find out more about your rights.