Casual employment is a common method of engaging employees as it provides flexibility to both employers and employees. Many employees prefer casual employment as they are paid a 25% loading in lieu of entitlements such as annual leave and personal leave. However, what happens if you have been a long-term casual employee and you want to be made permanent?

The Fair Work Act 2009 provides a right for an eligible employee to seek to convert from casual employment to permanent employment. In this blog, we look at when an employer is required to make an offer of casual conversion and when an employee has a right to request conversion from casual employment to permanent employment.

How can I convert from casual employment to permanent employment?

There are two ways an employee may be able to convert from casual to permanent employment:

  1. An employer can make an offer to an eligible casual employee to be converted to permanent employment; or
  2. An eligible casual employee may make a request to their employer to be converted to permanent employment.

1. Employer requirements to convert casual employees to permanent

An employer (excluding a small business employer), must make an offer of casual conversion to a casual employee within 21 days after the employee's 12-month anniversary if:

  • the employee has been employed by the employer for a period of 12 months; and
  • during at least the last 6 months of their employment, the employee has worked a regular pattern of hours on an ongoing basis. For example, if an employee has worked shifts of 8 hours each day, on every Monday and Tuesday for the last 9 months of their employment, then it will be clear they have worked a regular pattern of hours for the requisite 6 months; and
  • the employee could continue to work as a full-time or part-time employee without significant adjustment.

However, an employer is not obligated to make an offer of casual conversion if:

  • there are reasonable grounds not to make the offer, which may include that:
    • the employee's position will cease to exist within 12 months of the employer deciding not to make an offer. For example, the position will be made redundant;
    • the employee's hours of work will be significantly reduced;
    • there will be a significant change in the days and/or times the employee's hours of work are required to be performed; and
    • making the offer would not comply with a recruitment or selection process required by or under legislation; and
  • the reasonable grounds are based on facts that are known, or reasonably foreseeable, at the time the employer decides to not make the offer.

Does the offer of casual conversion have to be in writing or can it be verbal?

Any offer of casual conversion from an employer must be in writing and given to the employee within 21 days after the employee's 12-month anniversary.

Does my employer have to offer me full-time or part-time employment?

If a casual employee worked hours that are equivalent to full-time hours in the last 6 months of their employment, then the offer of casual conversion from an employer needs to be for full-time employment.

If, however, a casual employee worked less than the equivalent of full-time hours, then the offer of conversion from the employer needs to be for part-time employment that is consistent with the pattern of hours the employee worked in their most recent 6 months of employment.

Can I refuse an offer of casual conversion from my employer?

A casual employee does not have to accept an employer's offer of casual conversion. However, if an employee rejects an offer of casual conversion, then they cannot make a request to be converted to permanent employment for at least 6 months (after rejecting that offer) and the employer is not required to make the employee another offer.

If my employer is a small business, do they have to offer casual conversion?

A small business employer is an employer that employs less than 15 employees.

A small business employer does not have to make an offer to convert their casual employees to permanent employment. However, the employee may make a request to a small business employer to be converted to permanent employment.

2. Casual employee's right to request to be made permanent

A casual employee may make a request to their employer to be converted from casual to permanent employment if:

  • the employee has been employed by the employer for a period of 12 months;
  • during at least the last 6 months of that period, the employee has worked a regular pattern of hours on an ongoing basis;
  • the employee could continue to work as a full-time or part-time employee, without significant adjustment; and
  • at any time during their last 6 months of employment:
    • the employee has not refused an offer of conversion from the employer;
    • the employer has not given written notice to the employee that they had decided to not make an offer of conversion; and
    • the employer has not refused an employee's request of conversion.

A casual employee who is not employed by a small business employer can make a request for casual conversion 21 days after their 12-month anniversary. However, a casual employee employed by a small business employer can make a request for casual conversion at any time after their 12-month anniversary.

How do I make a request to my employer for casual conversion?

A request for casual conversion must:

  • be in writing;
  • be a request for the employee to convert:
    • to full-time employment, if the employee has worked the equivalent of full-time hours in the last 6 months of their employment; or
    • to part-time employment, if the employee has worked less than the equivalent of full-time hours in the last 6 months of their employment; and
  • be given to the employer.

Time limit for employer to respond to a request for casual conversion?

An employer is required to respond to a casual employee's request for casual conversion within 21 days after they are given the written request by the employee. An employer's response must be in writing and state whether they grant or refuse the request.

What happens if my employer grants my request for casual conversion?

If an employer decides to grant a casual employee's request for casual conversion, then within 21 days after receiving the request, they must:

  • discuss with the employee:
    • whether the employee is converting to full-time or part-time employment;
    • the employee's hours of work after the conversion takes effect;
    • the day the employee's conversion to permanent employment takes effect, which must be the first day of the employee's first full pay period that starts after the day the notice is given, unless the employee and employer agree to another day; and
  • after the discussion, provide the employee written notice of the above-mentioned matters discussed at the meeting.

When can my employer refuse my request for casual conversion?

An employer may refuse a casual employee's request to be converted to permanent employment if:

  • the employer has consulted with the employee; and
  • there are reasonable grounds to refuse the request, which may include the following:
    • it would require a significant adjustment to the employee's hours of work in order for the employee to be employed as a full-time or part-time employee;
    • the employee's position will cease to exist within 12 months of the employee making the request for casual conversion;
    • the employee's hours of work will be significantly reduced within 12 months after the employee made the request;
    • there will be a significant change in the days and/or times the employee's hours of work are required to be performed; and
    • granting the request would not comply with a recruitment or selection process required by or under legislation.

If an employer decides to refuse an employee's request for casual conversion, then within 21 days, they must notify the employee, in writing, of the reasons for the refusal.

Can my employer reduce my hours of work or terminate my employment if I make a request for casual conversion?

An employer is not permitted to reduce or vary an employee's hours of work, or terminate an employee's employment, to avoid any right or obligation under the casual conversion provisions in the Fair Work Act.

Can I challenge my employer's decision regarding a casual conversion request?

A casual employee can dispute an employer's decision to refuse their casual conversion request or their refusal to make a casual conversion offer.

In the first instance, the employee and employer must attempt to resolve the dispute at the workplace level through discussions between the parties. If the discussions at the workplace level do not resolve the dispute, the employee or employer may refer the dispute to the Fair Work Commission for mediation, conciliation and/or consent arbitration (this means the FWC can only make a binding decision if the employer agrees to that process).

However, if a casual employee:

  • is covered by an enterprise agreement or modern award; or
  • has an employment contract or any other written agreement between the employee and employer which contains a dispute settlement procedure,

then the employee must follow the dispute settlement procedure contained in the relevant industrial instrument, contract or written agreement.

Can I appoint a representative to assist me with a casual conversion dispute?

A casual employee or employer may appoint a person or industrial association, such as a union, to provide them with support or representation for the purposes of resolving their dispute or to represent them in the Fair Work Commission.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.