Section 15(A) of the FW Act contains a new definition. A person will be considered a casual employee if:

• An offer of employment was made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work;
• The person accepts the offer on that basis; and
• The person is an employee as a result of that acceptance.

In relation to what constitutes a ‘firm advance commitment,’ the following list of exhaustive factors will be considered:

1. Whether the employer can elect to offer work and whether the employee can elect to accept or reject work;
2. Whether the employee will work as required according to the needs of the employer;
3. Whether the employment is described as casual employment; and
4. Whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

The Amendment Act applies retrospectively, meaning any casual employees engaged prior to 27 March 2021, and whose initial employment offer meets the new above definition, will continue to be a casual employee under the FW Act.

The Amendment Act also amends the National Employment Standards in two ways. It now includes “division 4A-offers and requests for casual conversion” which provides casual employees with the entitlement to casual conversion. This entitlement was previously only included in the modern awards. Now employers will be required to assess the consistency of a casual staff member, the length of their engagement and whether the regularity of the shifts provided is expected to continue. Should this be the case, in most circumstances employers will be required to make an offer of permanent employment.

The National Employment Standards were also amended to include a new requirement for employers to provide any casual employees with the Casual Employment Information Statement (“CEIS”). This must be provided to all existing casual employees by 27 September 2021. Any new casual staff engaged after 27 March 2021 must be issued with the CEIS as soon as possible after commencing employment.

Finally, the Amendment Act addresses the situation where a court finds a permanent employee has been miscategorised as a casual employee. This has occurred in a number of recent court decisions resulting in employers having to account for those employee’s permanent benefits and entitlements even though the employee received a casual loading.

The Amendment Act enables a court to offset any identifiable casual loading paid to an employee against any liability for entitlements such as annual leave and personal leave payable under the FW Act. These provisions can also apply retrospectively prior to the commencement of the Amendment Act.

Practical suggestions for employers

In light of the changes under the Amendment Act, employers are encouraged to:

• Review employment contracts, policies, procedures;
• Review recruitment and engagement procedures;
• Consider casual conversion requirements including those provided under the FW Act, and modern awards;
• Update relevant documentation such as offer letters to employees, policies, procedures, and manuals; and
• Ensure the Casual Employment Information Statement is provided to existing casual employees by 27 September 2021 and all new employees on commencement.

Contact us for support

A fourth lockdown has been announced by the State Government. For details on what this means for your business, please head to the Victorian Chamber website. The Victorian Chamber has a variety of resources available to assist your business manage employee questions during this time. For immediate assistance with the lockdown and/or impact of the recent changes, please contact the Workplace Relations Team on (03) 8662 5222.