Casual Rostering and Award-Interpreted Payroll
Employment Restrictions in Australia
Casual Employment in Australia is limited to those team members who formerly requested casual employment conditions.
The problem for employers
If the employee requests permanent or part-time employment, the employer must grant the employee their request unless they can demonstrate that, after 12 months of service, the employee was not granted a firm, advanced commitment of continuing and indefinite work
This gives the employee the right to be offered part-time or permanent employment; this can be demonstrated through records of continuing and indefinite employment.
As an example, in my role of management of the catering staff in venues in the 1980’s the ongoing work at the weekly Greyhound racing club passed this requirement, whereas the employment at VFL Park did not due to the irregular activities at the venue.
In today’s environment, if an employee is rostered and works regularly, even if at different times each week, in a restaurant or hotel, they have the right to request part-time or full-time employment status, reducing the employer’s rostering flexibility.
Breaking down Fair Work Act casual employment and casual conversion rights
Under the Fair Work Act 2009 (Cth) (FW Act), the general rule is that an employee is a casual employee of an employer if:
- the employee would be entitled to a casual loading or specific casual rate; and
- the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work.
The business may need more rostering complexity because part-time and permanent employees must have their workdays and times recorded in their employment contract, which the employee must formally accept if the employer wants to change these days and times to meet the varying demands of the business.
The employee must formally accept any changes to their roster, as below.
If the employee does not accept the changes, the awards may include a provision for penalty rates to apply to days and times outside the employee contract of employment’s designated work times.
Frequently Asked Questions
Is there a firm advance commitment to continuing and indefinite work?
In assessing whether a firm advance commitment to continuing and indefinite work exists, the FW Act requires consideration of the real substance, practical reality and true nature of the employment relationship.
The following is relevant:
- whether there is an inability of the employer to elect to offer or not offer work, or an inability for an employee to elect to accept or reject work;
- employee will continue being available in the enterprise in the future;
- whether full-time or part-time employees are performing the same type of work that is usually performed by the employee; and
- whether there is a regular pattern of work for the employee. A pattern can be regular even if it is not uniform and includes some fluctuation or variation over time.
When can casual employees convert to permanency?
An employee who legitimately commences employment as a casual employee within the meaning of the FW Act remains a casual employee until:
- their status changes under the casual conversion provisions in the FW Act or an applicable award or enterprise agreement; or
- they accept an alternative offer of employment other than as a casual employee.
If an eligible casual employee believes their status has changed, they can give their employer written notice that they no longer meet the requirements for casual employment. An employee will generally be eligible if they have completed the relevant minimum period of employment (6 months or 12 months for a small business employer) and have not disputed their employment status in the previous 6 months.
What Must the Employee Do to Respond to the Request?
An employer must respond in writing to the employee’s notification within 21 days. The employer must consult with the employee prior to providing the response.
An employer accepting the notification must provide details of the proposed new full-time or part-time employment arrangements and discuss them with the employee.
Can an Employee Reject and not accept the request?
An employer that does not accept the notification must set out their reasons in the written response. An employer may not accept the notification if:
- the employee still meets the requirements of casual employment; or
- there are fair and reasonable operational grounds for not accepting the notification.
What reasons not to accept the request can be given by the Employer?
Fair and reasonable operational grounds include the following:
- substantial changes would be required to the way work in the enterprise is organised;
- there would be significant operational impacts on the employer’s enterprise;
- substantial changes to the terms and conditions of the employee’s employment would be reasonably necessary to ensure the employer does not contravene an applicable award or enterprise agreement; or
- accepting the notification would be contrary to public sector laws concerning recruitment or selection processes.