On 6 July, a five-Member Full Bench of the Fair Work Commission’s (FWC) handed down its decision in the Casual and Part-time Employment Case. Most of the unions’ claims, which would have wreaked havoc on Australia’s labour market, were rejected. The decision will reduce flexibility for some employers in some industries and this is a concern given the tough operating environment that many businesses are experiencing. However, importantly, the unions’ main claims have been rejected.

In the case, which continued for over two years, the unions were seeking an absolute right for casuals to be converted to permanent employment after six months of regular work, and for a standard four hour minimum engagement period for casuals and part-timers.

The Australian Manufacturing Workers Union (AMWU) pursued a more extreme claim than the ACTU. The ACTU sought an absolute right for casual employees to convert to permanent, should they wish to. The AMWU argued that casual employees under the Manufacturing Award and various other awards should be automatically deemed to be permanent employees after six months of regular service. Both the ACTU and AMWU claims were rejected.

Casual conversion provisions are common in awards and the FWC has decided to extend these provisions across most awards. Under the proposed model clause for awards that do not currently contain a casual conversion clause, employees will be able to remain casual indefinitely should they wish to do so. Casual employees who work regular hours will have the right to apply for permanent employment after 12 months of regular service, but employers will have the right to refuse such requests if refusal is reasonable in the circumstances.

Similar to their conversion claims, the unions’ claims for a standard four hour minimum engagement period for casuals and part-time employees would have harmed casual employees. Many casuals cannot or do not want to work for four hours, e.g. school students who work in the fast food industry after school. Fortunately, the unions’ four hour minimum engagement claims have been rejected. The Commission has proposed a two hour minimum engagement period for casuals under awards which do not currently contain any minimum period.

The FWC has also rejected the unions’ claim for a prohibition on businesses employing more casual or part-time employees until existing employees had been offered more hours.

The Commission has called for submissions in relation to its proposed changes by 9 August 2017.

Contrary to union claims about an increased “casualisation” of the workforce, the level of casual employment in Australia has been stable since 1998, at about 20% of the workforce. There are over 2 million casual employees in Australia.

Do you require further assistance?

For information or assistance regarding casual or part-time employees, please contact Ai Group’s Workplace Advice Service on 1300 55 66 77.

Alternatively, if you would like assistance in understanding how the award casual conversion provisions apply to your business or with any other issues relating to casual or part-time employment please contact your local Ai Group Workplace lawyer in Sydney, Newcastle, Wollongong, Melbourne or Brisbane.

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