Objective definition of casual employee.

The new amended definition of a casual employee will be under s 15A of the Fair Work Act 2009. Casual employees will essentially be defined as someone who has no firm advance commitment to continuing and indefinite work. They must be entitled to a casual loading or specific rate of pay for casuals and the new definition will take into consideration the practical reality of the employment relationship, not just what was in the employment contract when the casual employee started working.

The factors below are taken into account when assessing the practical reality of the employment relationship. However it is important to note that no single consideration is determinative of whether an employee is a casual or not. These factors include:
● Whether the employer can choose to, or choose not to, offer work to the employee. And vice versa if the employee can choose to accept or reject an offer of work;
● Whether continuing work is reasonably likely to be available given the nature of the business;
● Whether part-time or full-time employees are undertaking similar roles in the same workplace;
● Whether the employee has a regular pattern of work.
One clear and simple pathway to permanency
Casual employees who have worked for at least 6 months (or 12 months if they are working in a small business) will have the choice to notify their employer if they believe they no longer meet the definition of a ‘casual employee’. This employment statue will not change automatically and it will be subject to if the following occurs:
● The employee and employer agree to the change in status under the new employee choice pathway; or
● A dispute about a change in employment status is brought to the Fair Work Commission, who then resolves the dispute by giving an order that the employee is to be treated as a permanent employee; or
● The employee and employer mutually agree to the change in status under a Fair Work instrument (such as an enterprise agreement); or
● The employee and employer otherwise agree to change status.

Employers will have 21 days to respond to an employee notification and either convert the employee to full-time or part-time employment, or they must provide reasons why a notification is rejected (there are various grounds where an employer is permitted to reject a conversion notification such as if there are fair and reasonable operational grounds to do so). The Fair Work Commission has the power to hear disputes and they may refer matters to arbitration to resolve a dispute.

Status change will only happen where an employee wants to convert from being casual to permanent. If an employee wants to remain a casual employee, they will not be forced to become permanent.