Starting 26th of August 2024, the Fair Work Legislation Amendment Act 2024 redefines casual employment and establishes an employee-initiated pathway to convert to full-time or part-time employment. Additionally, the new workplace right to disconnect comes into force. It is now critical to review employment contracts and policies to ensure your employment records and practices are compliant with these new changes.
The new definition of casual employee
Currently, a casual is a individual who accepts an offer of employment by their employer with the understanding that there is no advance commitment to continuing and indefinite work, in relation to a mutually accepted pattern of work.
The new definition states that an employee is a casual employee in the case that the following conditions are met:
- The employment relationship is characterised by the absence of a firm advance commitment to continuing and indefinite work in accordance with the agreed pattern of work; and
- The substantial and true nature of the employment relationship indicates a causal employment relationship; and
- The contract of employment and the practical reality of the workplace indicate a casual employment relationship (including through conduct)
In addition to this, the Act provides other indicators of ‘casualness’ such as:
- An employer being able to choose to offer work or an inability for an employee to choose to accept or reject work
- Whether it is reasonably likely there will be future availability for the continuation of work usually performed by the employee
- Whether there are other full-time or part-time employees performing the same kind of work which is generally performed by the employee; and
- Whether there is a regular pattern of work
Note: A regular pattern of work does not itself indicate a firm and advance commitment to continuing and indefinite work.
Casual Conversion
There will now be one pathway for casual employees to convert to permanent employment. This is called the “employee choice” pathway, as it is initiated by the employee.
Casual employees may now provide an employer with written notice if they seek to convert their status to full-time or part-time employment after 6 months of employment (12 months for small businesses).
Employers will be required to respond to the written notice within 21 days. They must also consult with the employee prior to responding.
An employer may refuse to accept the employee notification where:
- The employer believes the employee still meets the definition of a casual employee
- There are reasonable operational grounds for refusal of the notification; or
- Acceptance of the notification by the employer will not comply with recruitment processes required by the Commonwealth, State or Territory Laws.
Note: the employee choice pathway does not override casual conversion procedures in a Modern Award or Enterprise Agreement
The Right to Disconnect
This right allows an employee to refuse to monitor, read or respond to contact or attempted contact from their employer or a third party outside of their regular working hours unless the refusal would be unreasonable.
Unreasonable Refusal
The right to refuse contact or attempted contact depends entirely on whether the refusal is unreasonable. The following factors must be taken into account in determining whether the refusal is unreasonable:
- The reason for contact or attempted contact
- The method of contact or attempted contact and the level of disruption caused to the employee
- Compensation for work outside normal hours (including non-monetary)
- Nature of the employee’s role and level of responsibility
- Personal circumstances, including family and caring responsibilities (Note: this is also a protected attribute under the FWA)
What this means for you
The changes to casual employment and the right to disconnect commence on the 26th of August 2024. The right to disconnect for employees of businesses starts 26th August 2025. It is imperative that employers take the following steps to stay ahead and be in compliance with these changes.
- Evaluate all factors in determining if there is a ‘firm advance commitment’ to continuing and indefinite work. If on assessment there is an absence of this commitment, then casual is a valid form of employment.
- Monitor the use of casuals tracking the practical reality and true nature of the employment relationship over the course of the employment, considering all relevant factors. If the true nature changes, consider full-time or part-time employment
- Review all employment contracts to ensure they reflect the new definition of casual employee
- Review contracts and develop/update policies (including recruitment policies) with the right to disconnect
- Make clear in contracts and position descriptions that out-of-hour contact is likely to occur (especially for employees in senior/higher positions)
Further Information
For more tailored advice on how these new changes affect your business and a review of your employment contracts contact us