Martin Osborne

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As part of the Commission’s four-yearly review of modern awards[1], the Full Bench of the Fair Work Commission (FWC) recently handed down a number of decisions[2] which have the effect of inserting a model casual conversion clause (Model Clause) into 84 Modern Awards[3] from 1 October 2018.  This provides “regular casual” employees the right to request to convert their employment to permanent full-time or part-time.

The other 28 Modern Awards that already contain a casual conversion clause prior to 1 October 2018 will remain unchanged.

Who can request for casual conversion?

The Model Clause provides a framework under which employees are entitled to request to convert their employment from casual to either permanent part-time or full-time, in certain circumstances.

The entitlement arises if the employee is a “regular casual employee” within the definition provided in the Model Clause.  This requires the employee to have, in the preceding 12 months, worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee or part-time employee under the provisions of the Modern Award.

When can an employer refuse the request?

In the event that an employee is a “regular casual” employee for the purpose of the Model Clause, the employee is not provided with an automatic right to be converted to permanent full-time or part-time employment.  The Model Clause allows employers to refuse a request on “reasonable grounds”, including any of the following:

  • It would require a significant adjustment to the employee’s hours of work in order for the employee to be engaged as a full-time or part-time employee in accordance with the provisions of the Award. That is, the employee is not truly a regular casual employee under the Award.
  • It is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months.
  • It is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months.
  • It is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.

For any ground of refusal to be reasonable, the employer must base the reason on facts which are known or reasonably foreseeable at the time the decision is made.

A FIFO worker who was purportedly engaged as a “casual” under an enterprise agreement has successfully claimed an entitlement to annual leave under both the National Employment Standards (NES) and the terms of the enterprise agreement.

The full Federal Court decision in WorkPac Pty Ltd v Skene [2018] FCAFC 131 opens the way for further claims by employees who are engaged as casuals but work regular and consistent hours.

The Australian Building and Construction Commission (ABCC) has recently released further guidance material in relation to its interpretation of, and likely enforcement approach towards, the freedom of association provision within the Building Code 2013 (Code 2013) and Code for Tendering and Performance of Building Work 2016 (Code 2016).

The freedom of association provisions within both Code 2013 and Code 2016 require building contractors and other building industry participants to adopt policies which ensure that persons are:

  • free to become, or not become, members of industrial associations;
  • free to be represented, or not represented, by industrial associations; and
  • free to participate, or not participate, in lawful industrial activities.

However, the specific requirements with respect to the display of building association logos, mottos and indicia differ between Codes.