Award review - significant decision: casual and part time employment
EMPLOYERS WOULD be aware that the Fair Work Commission is currently undertaking its four-yearly review of modern awards. Recently, as part of the review, a Full Bench of the Commission handed down its decision concerning a number of union claims relating to casual and part time employment.
What was the casual and part time employment case about?
The ACTU, on behalf of its union affiliates, had made a number of claims affecting casual and part time employment in over 100 modern awards and broadly seeking “one-size-fits all” award provisions on these important matters. The claims included:
• Minimum Engagements: A standard four hour minimum engagement for casual employees and part-time employees.
• Casual conversion: An award provision required employers to offer weekly employment
(full time or part time) to casual employees after 6 months of regular employment with the casual employee able to elect to become a weekly employee or remain as a casual. For some awards, the unions proposed that casual employees would be “deemed” to be weekly employees. • Restrictions on new casual work: An award provision that would prevent an employer from offering new casual employment without first offering existing casual or part time employees an opportunity to increase their hours.
The unions’ claims were opposed by the major employer groups emphasising that the ACTU had not advanced sufficient evidence, its claims were inappropriate, and would disrupt current award minimum engagement provisions having regard for particular industry circumstances.
The Decision also dealt with union and employer claims to vary other casual and part-time employment provisions in some award groups or individual awards.
What does the Commission’s decision mean?
The Commission rejected the unions’ claim to prevent employers from engaging new employees without first offering available hours to existing staff, citing a lack of evidence and the impracticality and unsustainability of such arrangements.
The Commission also rejected the unions’ claim for 4 hour minimum engagements across the board for all casual and part-time employees. However, some aspects of the union claim were granted, in a modified form.
The Commission decided that modern awards should contain casual conversion provisions.
The Commission has formed the provisional view that a model casual conversion clause will be inserted into 85 awards that do not currently contain such a provision. It is proposed that the clause will include the following:
• A qualifying period of 12 calendar months;
• A qualifying criterion that over such period the casual employee has worked a pattern of hours on an ongoing basis that would not be inconsistent with the part-time and full-time employment provisions of the particular award;
• The employer must provide all casual employees (regardless of whether they are eligible for conversion) with a copy of the casual conversation clause within 12 months of their initial engagement; and
• The conversion may be refused by an employer only in particular circumstances:
○ It would require a significant adjustment to the casual employee’s hours of work to accommodate them in parttime or full-time employment in accordance with the terms of the applicable modern award; or
○ 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; or
○ On other reasonable grounds based on facts which are known or reasonably foreseeable.
The Commission has invited further submissions on the content of the proposed model clause. Any awards that already contains a casual conversion clause will not be varied in this respect.
Casual minimum engagement
The Commission has also formed the provisional view that a 2 hour minimum engagement for casual employees will be introduced into all 34 awards that currently do not currently contain a casual minimum engagement. Any award that already contains a casual minimum engagement will not be affected, e.g. the Timber Industry Award 2010 already contains the provision for minimum engagement of 4 hours.
When do the changes commence?
None of the above changes have come into effect as yet. For some of the above proposed changes there will be further Commission proceedings. TTIA Members will be notified when the above changes are due to commence.
The TTIA operates the Timber Industry’s only in-house premier Industrial Relations advice line alongside legal and workplace health and safety services. If your company is interested in information with regard to membership, please contact TTIA on (02) 9264 0011.