A Guide to Casual Employment Changes for Australian HR Managers

Big changes are coming for how businesses engage casual workers in Australia, and HR managers need to get ready. The Fair Work Amendment (Closing Loopholes No. 2) Bill kicked in on August 26, 2024, and it’s important to understand what’s changing to keep your business compliant.

These updates bring in new definitions, rules, and penalties around casual employment, so now’s the time for HR teams to get up to speed and prepare.

In this guide, we’ll break down what’s new and share practical tips to help your business transition smoothly ⬇️

What Does ‘Casual Employment’ Mean Exactly?

Current definition

Under the current rules, casual employment is mostly defined by the employment contract. According to the Fair Work Act 2009, a casual employee is someone who:

• Is offered employment with no firm advance commitment to ongoing or indefinite work
• Accepts this offer
• Becomes an employee based on this acceptance

The focus has been primarily on the employment contract itself. As long as the contract stated there was no firm advance commitment to regular work, the employee was generally classified as casual.

New definition

With the Fair Work Amendment 2024, the definition of casual employment shifts dramatically. Now, the focus is not just on the employment contract but on the real substance, practical reality, and true nature of the employment relationship.

This means HR professionals need to look beyond the written terms in the contract and consider several factors that indicate whether an employee is truly casual, including 👇

• Whether the employer can elect to offer work and whether the employee can accept or reject work
• Whether there is a regular pattern of work, even if it’s flexible
• Whether full-time or part-time employees are doing the same type of work
• Whether the employee receives a casual loading or a specific casual pay rate under an award, enterprise agreement, or contract

➡️ You can no longer rely solely on the employment contract to determine casual status. Instead, you need to assess the practical reality of how the employee works.

Key factors in determining casual employment

• Flexibility of work: Does the employee have the right to reject shifts? Do you as the employer offer shifts on an as-needed basis?
• Pattern of work: While casual employees may work regularly, what matters is whether there is a firm advance commitment to ongoing work
• Casual loading: Is the employee being paid casual loading? This is now a key indicator of casual employment

The New Pathway to Permanent Employment: Casual Conversion

One of the biggest changes coming into effect is the process by which casual employees can convert to permanent employment.

Previously, employers were required to offer casual workers the option to convert to permanent status after 12 months of regular work (6 months for small businesses). Employers had to review each casual worker’s employment and offer conversion if they had worked a regular pattern of hours.

The new casual conversion process

Under the new rules, the onus shifts from the employer to the employee. Starting from August 26, 2024, casual workers who have been employed for at least six months (12 months for small businesses) can initiate the conversion process themselves.

• Employees will need to submit a written request to their employer to convert to full-time or part-time status
• Employers must respond to these requests within 21 days
• Grounds for refusal include operational reasons or if the employee still meets the definition of a casual worker (e.g., they are not working on a regular and systematic basis)

➡️ HR teams no longer need to keep track of casual conversion reviews, but you must be prepared to respond promptly to conversion requests.

Anti-avoidance provisions & penalties

The new anti-avoidance provisions aim to prevent employers from exploiting casual work arrangements to avoid paying full employee entitlements. Under these rules, it will be illegal for employers to:

• Dismiss and re-engage workers as casuals to avoid giving them full employment benefits
• Make false statements to convince workers that they should remain casual for financial benefits
• Misrepresent casual employment, such as offering casual employment where the role clearly fits the definition of full-time or part-time work

Penalties for breaching these provisions are substantial. Civil penalties can reach up to $469,500 for companies and $4,695,000 for serious contraventions. With these penalties in place, businesses must take compliance seriously to avoid costly mistakes. 

Our Best Tips for Casual Employment Compliance

Update employee contracts and policies

While employment contracts are no longer the only deciding factor for determining casual status, it’s still essential to ensure that your contracts clearly reflect the new laws. Updating contracts now will help protect your business down the track and avoid any confusion.

Here are some critical elements to include in your updated casual employment contracts 👇

• No firm advance commitment: Be explicit in stating that there’s no promise of ongoing or regular work. This should be crystal clear so there’s no misunderstanding later on
• Casual loading or specific pay rate: Make sure your contracts outline the casual loading percentage (usually 25%) or the specific rate casual workers are entitled to under relevant awards or enterprise agreements. This is now a key criterion in classifying someone as a casual worker, so it needs to be prominently highlighted
• Rights and obligations: Outline the employee’s rights under the new laws, particularly the right to request casual conversion after six months (or 12 months for small businesses)

💡 Go beyond just updating your contracts — ensure your policies align with the new definition of casual work. This includes updating handbooks, onboarding processes, and any materials that outline your business’s employment practices.

Review your hiring practices

With the new definition of casual employment coming into play, it’s essential to re-evaluate your hiring processes. This means more than just getting the paperwork right; it’s about ensuring your actual practices reflect the intent of the new law.

• Avoid promises of regular shifts: One of the primary indicators of permanent employment is a regular pattern of work. Avoid making verbal or written promises of fixed shifts or ongoing work commitments. This can create the perception of a permanent role, opening the door to claims of misclassification
• No guarantees on hours: Make it clear to new hires that the hours they’ll be working may fluctuate based on the business’s needs, and they are free to accept or reject shifts as they wish
• Ensure casual engagement aligns with business needs: Only engage casual employees when the work genuinely requires flexibility. If you constantly need the same person for the same shifts every week, you might need to consider offering a part-time or full-time role instead

💡Train your hiring managers and recruiters to avoid language or promises during interviews that could imply ongoing or guaranteed work. They need to understand that casual work under the new laws must remain flexible.

Efficiently handle casual conversion requests

Under the new laws, casual employees now hold the power to request conversion to permanent employment. This means your HR processes need to be watertight to manage these requests efficiently and compliantly.

Here’s how to streamline the process:

• Create templates: Design templates for both acceptance and rejection responses to casual conversion requests. This will ensure consistency in communication and save time. Be sure these templates reflect the new legal obligations, such as the requirement to respond within 21 days
• Document everything: Whenever you reject a casual conversion request, document the reasons clearly. You must be able to justify the refusal based on legitimate operational grounds (e.g., substantial business changes, or if the employee still meets the criteria for casual employment). This documentation can protect you in case of future disputes
• Set up a tracking system: Implement a tracking system — this could be part of your HR software or a dedicated manual process—that monitors when conversion requests are made and ensures timely responses. Missing the 21-day deadline could lead to compliance issues, so stay on top of the timeline

💡 Be proactive! You don’t have to wait for conversion requests to come in. If you notice a casual worker is consistently working regular hours, it might be worth having a conversation to manage expectations and discuss potential conversion, even before they request it.

Monitor employee work patterns

Regularly monitoring casual employee work patterns is critical under the new rules. The absence of a firm advance commitment is a cornerstone of casual employment, so if a casual worker is consistently working regular shifts, it could imply a more permanent relationship.

Here’s what you need to do 👇

• Track work schedules with HR software: Use HR tools to monitor how often casual employees are working, what shifts they are being assigned to, and whether there is any emerging pattern. Automation tools can alert you when a casual worker is repeatedly scheduled for the same hours or shifts, which could indicate a move towards permanency
• Identify risks of reclassification: If a casual employee’s schedule starts to look like a permanent employee’s—regular hours, consistent shifts, or even a “guaranteed” spot on the roster—you could face reclassification risks. This could entitle the worker to full-time or part-time benefits like paid leave and other entitlements
• Corrective action: If you notice any casual employees falling into a regular work pattern, take corrective action. Have a conversation with the employee, and adjust their roster or discuss other employment options, such as casual conversion or part-time work

💡 Be careful not to slip into the habit of giving casual workers fixed shifts without re-evaluating their employment status. If they’re working consistently on the same days or times, it could be seen as a permanent arrangement, leaving you open to legal risks.

Takeaway

The changes to casual worker laws in Australia are significant, and they represent a shift toward ensuring fair treatment and clarity for both employers and employees. 

Now is the time to review your policies, update employment contracts, and ensure that your team is fully prepared to handle the new requirements. 👍

🚀 Looking for more expert insights on HR compliance and best practices? Check out the Subscribe-HR blog for the latest insights on how to streamline your HR processes.

FAQs – Frequently asked questions

What happens to existing casual employees?

If a worker is classified as casual under the current rules, they will remain casual after August 26, 2024. However, they can still request to convert to permanent status if they meet the eligibility criteria.

Can an employee with regular shifts still be classified as casual?

Yes, an employee can still be classified as casual even if they work regular shifts, as long as there is no firm advance commitment to ongoing work. The pattern of work alone does not determine casual status.

What documentation is required for conversion requests?

Employers must provide a written response within 21 days of receiving a conversion request. This response should either confirm the change to permanent status or provide clear reasons for refusal.

What is the minimum engagement for casuals?

The minimum engagement period for casual employees in Australia is typically governed by the relevant Modern Award or Enterprise Agreement, with many awards specifying a minimum of 3 hours per shift.

How does casual conversion work for small businesses?

For small businesses (employing fewer than 15 employees), the casual conversion rights come into effect six months later, on February 26, 2025. Employees must have been employed for 12 months and must initiate the conversion request themselves.