From Omnibus to Unibus

On 9 December 2020, the Federal Government introduced a package of reforms that it said were designed to give businesses the confidence to get back to growing jobs, as well as delivering the tools to help employers and employees to work together in a post-COVID Australia.

However, what has returned from the Senate after tortuous rounds of discussions, committee deliberations and, ultimately, significant concessions is a reform package now centred only on addressing casual employment.

While the issues relating to casual employment, particularly in light of the decisions such as WorkPac Pty Ltd v Rossato [2020] FCAFC 84, is an area where legislative action are important, an opportunity to make a sclerotic system less so, is lost.

The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021, came out of extensive consultation with employer and employee groups trying to find innovative solutions to support struggling businesses, and protect and enhance the rights of workers. It focused on 5 key areas of reform:

  • Award simplification
  • Greenfields agreements
  • Casual employment
  • Enterprise agreements
  • Compliance and enforcement

Of these 5 cylinders, the Omnibus has arrived at its final destination with only one cylinder operating, only marginally better than a hand powered jalopy, and that cylinder is casual employment clarification.

So, what is on the horizon for employers looking for clarity around their obligations in respect of casual employees?

Finally, a statutory definition of a casual employee

First the Bill will introduce a definition of casual employee. This is designed to confirm that a casual employee is a person to whom an offer has been made and no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person.

Provided the offer of employment is accepted on this basis and employment commences because of this acceptance, the person will be a casual employee without regard to subsequent conduct.

Endless possibilities become clear guidance

In terms of understanding whether no firm advancement commitment exists, the Bill provides a finite number of considerations to look at:

  • Whether the employer can elect to offer work and whether the person can elect to accept or reject work;
  • Whether the person will work only as required;
  • Whether the employment is described as casual employment;
  • Whether a casual loading applies.

Future conduct cannot unpick the original agreement

The Bill also clarifies that only conduct at the time of offering and accepting casual employment is relevant to characterising the arrangement as “casual”. This is important because it removes a key consideration of the Court in Rossato when it rejected the notion that Mr Rossato was a casual employee.

Common sense prevails on regular hours

The Bill makes clear that regularity in work scheduling is only one factor to be considered. It is not determinative on its own.

Legislative set off puts an end to double dipping

Finally, and if despite all best efforts, a casual employee is found by a Court to not be a true casual, then there is scope under the Bill to allow casual loadings to be legislatively set off against certain entitlements which would otherwise be owed to a permanent employee performing the same work. This ensures that payments of casual loadings are not merely “windfalls” to wrongly characterised employees.

Casual conversion becomes a statutory entitlement

Aside from these clarifying provisions, the Bill installs rules around employer offers to casual employees to be offered permanent part-time or full time employment and provides for residual rights for employees to request to convert to being permanent employees. These amendments, at a practical level, give legislative force to the existing regime of casual conversion set out in Modern Awards. The only difference is that the right to conversion will now be a national employment standard (and is enforceable as such) as opposed to being a right provided by way of legislative instrument.

When all is said and done a key reform has been delivered by the Omnibus with all the other reforms left waiting, maybe forever, at the bus stop.

Michael Stutley
+61 8 6381 7060
[email protected]

James Parkinson
Senior Associate
+61 8 6381 7053
[email protected]