Thinking | 7 July 2017

Landmark ruling on employment rights for casual employees

As part of its four yearly review of modern awards, in July 2017, the Fair Work Commission (FWC) issued a landmark decision that gives award-covered casual employees the right to convert to permanent employment (subject to certain criteria and restrictions).

Employers are likely to be affected by the decision if they have casual employees who:

  • are covered by one of the 85 modern awards listed below that do not currently contain a casual conversion clause and
  • work regular and systematic hours.

The effect of this decision is that, once the casual conversion is included in the 85 modern awards listed below, the vast majority of modern awards will have a casual conversion clause. The decision does not affect employers whose employees are covered by a modern award that already has a casual conversion clause.

Decision

The FWC’s decision, which was handed down on Wednesday (5 July 2017), recognises that modern awards should contain a provision allowing long-term casual employees to elect to convert to full-time or part-time employment. While the FWC is yet to decide on the final form of that new provision, it has published a draft model clause whereby casual employees can request part-time or full-time employment if they have worked a regular pattern of hours for at least 12 months.

Employers will be able to refuse the casual employee’s request on reasonable grounds, including:

  • it would require significant adjustment to the casual employee’s hours of work to accommodate them in full-time or part-time employment under the applicable modern award
  • it is known or reasonably foreseeable that the casual employee’s position will cease to exist or
  • the employee’s hours of work will significantly change or be reduced within the next 12 months.

A list of modern awards that will be affected by the FWC’s decision is included below. Employers with casual employees covered by any one (or more) of these awards should start thinking about how their businesses may be affected by the proposed clause, particularly if they have long-standing casual employees who work regular and systematic hours.

Aboriginal Community Controlled Health Services Award 2010 [MA000115]
Aged Care Award 2010 [MA000018]
Air Pilots Award 2010 [MA000046]
Aircraft Cabin Crew Award 2010 [MA000047]
Airline Operations-Ground Staff Award 2010 [MA000048]
Airport Employees Award 2010 [MA000049]
Aluminium Industry Award 2010 [MA000060]
Ambulance and Patient Transport Industry Award 2010 [MA000098]
Amusement, Events and Recreation Award 2010 [MA000080]
Animal Care and Veterinary Services Award 2010 [MA000118]
Aquaculture Industry Award 2010 [MA000114]
Architects Award 2010 [MA000079]
Banking, Finance and Insurance Award 2010 [MA000019]
Book Industry Award 2010 [MA000078]
Broadcasting and Recorded Entertainment Award 2010 [MA000091]
Business Equipment Award 2010 [MA000021]
Car Parking Award 2010 [MA000095]
Cemetery Industry Award 2010 [MA000070]
Children’s Services Award 2010 [MA000120]
Cleaning Services Award 2010 [MA000022]
Clerks – Private Sector Award 2010 [MA000002]
Coal Export Terminals Award 2010 [MA000045]
Commercial Sales Award 2010 [MA000083]
Contract Call Centres Award 2010 [MA000023]
Corrections and Detention (Private Sector) Award 2010 [MA000110]
Dredging Industry Award 2010 [MA000085]
Dry Cleaning and Laundry Industry Award 2010 [MA000096]
Educational Services (Schools) General Staff Award 2010 [MA000076]
Educational Services (Teachers) Award 2010 [MA000077]
Electrical Power Industry Award 2010 [MA000088]
Fast Food Industry Award 2010 [MA000003]
Fitness Industry Award 2010 [MA000094]
Funeral Industry Award 2010 [MA000105]
Gardening and Landscaping Services Award 2010 [MA000101]
Gas Industry Award 2010 [MA000061]
General Retail Industry Award 2010 [MA000004]
Hair and Beauty Industry Award 2010 [MA000005]
Health Professionals and Support Services Award 2010 [MA000027]
Horticulture Award 2010 [MA000028]
Hydrocarbons Field Geologists Award 2010 [MA000064]
Hydrocarbons Industry (Upstream) Award 2010 [MA000062]
Journalists Published Media Award 2010[MA000067]
Labour Market Assistance Industry Award 2010 [MA000099]
Legal Services Award 2010 [MA000116]
Live Performance Award 2010 [MA000081]
Local Government Industry Award 2010 [MA000112]
Marine Tourism and Charter Vessels Award 2010 [MA000093]
Marine Towage Award 2010 [MA000050]
Market and Social Research Award 2010 [MA000030]
Medical Practitioners Award 2010 [MA000031]
Mining Industry Award 2010 [MA000011]
Miscellaneous Award 2010 [MA000104]
Nursery Award 2010 [MA000033]
Nurses Award 2010 [MA000034]
Oil Refining and Manufacturing Award 2010 [MA000072]
Passenger Vehicle Transportation Award 2010 [MA000063]
Pastoral Award 2010 [MA000035]
Pest Control Industry Award 2010 [MA000097]
Pharmaceutical Industry Award 2010 [MA000069]
Port Authorities Award 2010 [MA000051]
Ports, Harbours and Enclosed Water Vessels Award 2010 [MA000052]
Poultry Processing Award 2010 [MA000074]
Professional Diving Industry (Industrial) Award 2010 [MA000108]
Professional Diving Industry (Recreational) Award 2010 [MA000109]
Professional Employees Award 2010 [MA000065]
Racing Clubs Events Award 2010 [MA000013]
Racing Industry Ground Maintenance Award 2010 [MA000014]
Rail Industry Award 2010 [MA000015]
Real Estate Industry Award 2010 [MA000106]
Restaurant Industry Award 2010 [MA000119]
Road Transport (Long Distance Operations) Award 2010 [MA000039]
Salt Industry Award 2010 [MA000107]
Seafood Processing Award 2010 [MA000068]
Security Services Industry Award 2010 [MA000016]
Silviculture Award 2010 [MA000040]
Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100]
Sporting Organisations Award 2010 [MA000082]
State Government Agencies Administration Award 2010 [MA000121]
Storage Services and Wholesale Award 2010 [MA000084]
Supported Employment Services Award 2010 [MA000103]
Surveying Award 2010 [MA000066]
Telecommunications Services Award 2010 [MA000041]
Travelling Shows Award 2010 [MA000102]
Water Industry Award 2010 [MA000113]
Wool Storage, Sampling and Testing Award 2010 [MA000044]

Contact

Mark Dunphy

Mark is an employment lawyer experienced in litigious and non-litigious applications of employment and industrial relations law.

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