If you employ casual staff, you’ve probably heard about the new laws that were introduced in March 2021, regarding their rights around casual conversion and the requirement to provide employees with a Casual Employment Information Statement (CEIS).

When the laws were introduced in March 2021, employees were given a 6-month grace period to make necessary adjustments for existing casual employees. 

Well, that deadline of 27 September 2021 is fast approaching and so we’ve set out all the things you need to know in relation to existing casual employees.

Re-Cap On The New Laws (Introduced March 2021)

You can read more about the new laws that were introduced back in March 2021 here, where we provide a comprehensive breakdown of the changes.

In summary, here are the key changes that were introduced:

  • New definition “casual employment”
  • No more double dipping on entitlements
  • Introduction of a new CEIS that must be provided to all casual employees
  • New employer obligations and employee rights around offering and requesting casual to permanent conversion

Importantly, the new laws provided a 6-month grace period for existing casual employees (i.e. casual employees who were employed before 27 March 2021) to give businesses enough time to make adjustments.

Who Do These New Laws Apply To?

The new laws apply to all employers, but small businesses with less than 15 employees are exempt from some of the obligations.

Specifically, small business employers are exempt from the obligation to offer casual conversion. However small business employers are still required to answer to requests made by casual staff for conversion, and follow the process set out in the legislation in dealing with those requests.

Importantly however, all employers are required to give casual employees a CEIS.

What Is The New Casual Employment Information Statement (CEIS)?

The Fair Work Ombudsman has introduced a new document called the Casual Employment Information Statement, or CEIS, which is a document that sets out the rights of casual employees.

It’s similar to the Fair Work Information Statement (FWIS) you’re required to give all staff, but the CEIS is specific to casual staff. You need to give casual staff both the FWIS and the CEIS.

The CEIS includes information about:

  • the definition of a casual employee
  • when an employer has to offer casual conversion
  • when an employer doesn’t have to offer casual conversion
  • when a casual employee can request casual conversion
  • casual conversion entitlements of casual employees employed by small business employers
  • how the Fair Work Commission can act in dealing with disputes about casual conversion

When Is The Deadline To Provide Staff With CEIS?

Employers must provide the latest version of the CEIS to all casual employees

The required timing will depend on the following:

  • Whether the employer is a small business (i.e. less than 15 employees).
  • Whether the relevant staff is an:
    • existing casual employee (employed before 27 March 2021)
    • new casual employee (employed after 27 March 2021)

Existing employees – for small businesses

Small businesses with less than 15 employees must give all their existing casual employees a copy of the CEIS as soon as possible after 27 March 2021

Hopefully you have already done this, but if you haven’t, make sure you do this ASAP.

Existing employees – for all other businesses

All other businesses have until 27 September 2021 to provide their existing casual employees with a copy of the CEIS.

If you fall under this category, unlike small businesses, you’re required to offer eligible casual employees a conversion under the new regime. This grace period is supposed to give you enough time to assess which of your staff will be offered conversion. More on this below.

New employees – for all businesses

For any new casuals employed after 27 March 2021, you need to give them a copy of the CEIS as soon as possible after they start employment.

However you don’t need to worry about their conversion until they’ve been with you for a year.

How Do I Give The CEIS To My Staff?

The law prescribes several ways you can give a copy of the CEIS to your staff, including:

  • in person
  • by mail
  • by email
  • by emailing a link to this page of our website
  • by emailing a link to a copy of the CEIS available on the employer’s intranet
  • by fax

It’s good practice to keep a record on your system of who has received a CEIS and when, so that you can be sure that you’ve complying.

You should also check regularly that you have provided the most recent version of the CEIS. The CEIS was first released on 29 March 2021 and has since been updated on 20 May 2021.

How Can I Prepare For 27 September 2021?

First of all, make sure that you’ve made arrangements to comply with the requirement to give a CEIS to all casual staff.

Then you need to consider whether any of your casual staff will be entitled to conversion. 

This is especially important if you’re not a small business because you’ll be required to offer them a conversion. Ensure you have all the ducks in a row for when your employees accept the offer.

Even if you’re a small business, it’s a good idea to do this so that you’re prepared to respond if an employee requests conversion. Remember, as a small business you’re not required to offer casual conversion, but they’re entitled to request it (and they can do so before 27 September 2021 if they haven’t already!)

To work out whether a casual employee is entitled to conversion, consider the following:

  • Have they been employed for 12 months or more?
  • Have they worked regular and systematic hours for the past 6 months?

If the answer is yes to both of the above, you’ll at least be required to receive requests for conversion, and if you’re not a small business, you’ll be required to offer them conversion.

Are There Any Exceptions To The Offer Obligation? 

Yes – these are set out in section 66C of the Fair Work Act.

Employers are not required to make an offer for casual conversion if there are reasonable grounds not to make an offer

The legislation sets out some examples of what is considered reasonable grounds, such as:

  • The employee’s position will cease to exist in the next 12 months.
  • The hours of work will be significantly reduced in the next 12 months.
  • There will be a significant change in the next 12 months to the days and/or times of work that are required to be performed, and those changes cannot be accommodated within the employee’s availability.
  • Making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory.

If you rely on this section to not offer casual conversion, you must provide written notice of this decision to the employee which must do the following: 

  • State that you will not be making an offer of casual conversion
  • Detailed reasons why you will not be making that offer
  • Be provided to your casual employee within 21 days from when your employee reached 12 months of employment with you

Can I Refuse Requests For Casual Conversion?

Yes – this is set out in section 66H of the Fair Work Act.

Similar to the grounds for not making an offer, an employer may refuse a request for casual conversion if there are reasonable grounds to refuse the request.

A similar list of examples is set out in section 66H, and the reasons must be provided to the employee.

Anything Else I Need To Be Aware Of?

Looking for loopholes to avoid casual conversion may not be the best idea, as it is likely illegal. 

Here are some examples:

Converting casuals to fixed-term contracts does not satisfy the conversion requirement

  • Section 66A(2) specifically prevents you from converting your employee to a fixed-term contract or some other temporary arrangement.
  • The conversion must be to a permanent employee, whether full-time or part time.

You cannot reduce or vary an employee’s hours of work or terminate an employee to avoid casual conversion. 

  • Section 66L(1) clearly prohibits this, so be careful not to try and game your staff’s roster to avoid a regular pattern.
  • Also remember that employees have general protections against adverse action for exercising a workplace right, so this means you can’t penalise an employee for requesting conversion.

Need A Copy Of the Documents? 

Click here to download the CEIS.

Click here to download the FWIS.

Need Further Help? 

We understand that there are a lot of obligations you have to stay on top of as a business owner. However, it is vital that you understand and know your obligations as an employer to ensure the success of your business and your employees. 

Keeping up to date with your legals can be a tricky task at times. Don’t stress, we’re here to help! If you have any questions, you can reach out to our team for a free, no-obligations chat at team@sprintlaw.com.au or 1800 730 617

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