Casual Employees – When do I have to offer casuals permanent employment?

October, 2014

By Clayton Payne

Although many employers employ casual staff as a matter of convenience, can this type of engagement last indefinitely?

Some employees like the idea of receiving a casual loading and may wish to remain employed on this basis. However, such preferences can clearly change, for example when the employee seeks to take out a loan, or requires more stability in their employment.

A recent statement released by Mr. Justice Ross of the Fair Work Commission on 1 October 2013, noted that with respect to the four yearly review of Modern Awards, the issue of “casual conversion” will be considered.

Casual conversion provisions are currently contained in some Modern Awards, although it would seem that the issue may be looked at in the context of more or all Modern Awards.

What is “casual conversion”?

In summary, some Modern Awards contain provisions which require an employer to offer a casual employee either full-time or part time employment if they have been engaged on a regular and systematic period for a certain period of time (usually six months) and will continue to be employed.

Usually the employee can choose to remain in casual employment, but should they do otherwise, this has the ability to create difficulties for the employer. In particular, although the employer may no longer be required to pay a casual loading, the employee will be entitled to paid annual leave and personal/carer’s leave. They will also likely have the ability in time to bring a statutory unfair dismissal claim if their employment is terminated.

Those employers currently engaging employees under Modern Awards with casual conversion provisions in them, should carefully consider their potential liabilities and whether they are in breach of the relevant award. Those in the building and construction industry in particular, should be mindful of such provisions.

Contact Mills Oakley

For more information, please contact:

Ross Levin | Partner
Melbourne
T: +61 3 9605 0070
E: rlevin@millsoakley.com.au

Malcolm Davis | Partner
Sydney
T: +61 2 8035 7932
E: mdavis@millsoakley.com.au

Adam Lunn | Partner
Melbourne
T: +61 3 9605 0868
E: alunn@millsoakley.com.au

Lisa Anaf | Partner
Melbourne
T: +61 3 9605 0857
E: lanaf@millsoakley.com.au

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