In March 2021, the casual employment amendments to the Fair Work Act 2009 (Cth) (FW Act) introduced a new statutory definition of “casual employee” and an entitlement to casual conversion as one of the National Employment Standards (NES).
In March 2021, the casual employment amendments to the Fair Work Act 2009 (Cth)(FW Act) introduced a new statutory definition of “casual employee” and an entitlement to casual conversion as one of the National Employment Standards (NES).
As part of the amendments, the Fair Work Commission (the FWC) was required to undertake a review of casual terms in modern awards and their interaction with the casual employee amendments under the FW Act (Casual Terms Award Review).
The Casual Terms Award Review is ongoing however, there has been considerable progress. An update of the Casual Terms Award Review is below.
The FWC has approached the review in two stages.
Stage 1 of the Casual Terms Award Review:
Under Stage 1, a Full Bench of the FWC considered the casual employment terms in an initial group of six priority modern awards (Stage 1 Awards). The Stage 1 Awards considered comprised of the following:
- General Retail Industry Award 2020
- Hospitality Industry (General) Award 2020
- Manufacturing and Associated Industries and Occupations Award 2020
- Pastoral Award 2020
- Educational Services Award 2020
- Fire Fighting Industry Award 2020
In July 2021, the Full Bench handed down its decision for the Stage 1 Awards addressing submissions to its provisional views in relation to casual employment award terms.
The Full Bench confirmed its provisional view that award definitions of “casual employment” or “casual employees” across the Stage 1 Awards were inconsistent with the new statutory definition of a casual employee under the FW Act.
For example, the Full Bench identified that the “engaged as casual” definition was in consistent with the new definition of casual employee under the FW Act, resulting in an employee being considered a casual under the modern awards but not being considered a casual under the FW Act, or visa versa.
In order to deal with inconsistencies such as these, the Full Bench has issued draft determinations to vary the Stage 1 Awards which include inserting the definition of casual employee in the modern awards per the FW Act and inserting provisions for offers and requests for casual conversion per the NES.
The determinations will be made and come into operation on 27 September 2021. You can find FWC’s determinations on the Stage 1 Awards here.
Stage 2 of the Casual Terms Award Review:
In Stage 2, the Full Bench is reviewing the remaining modern awards which have been divided into four groups. A list of the Modern Awards that fall under each group include (but are not limited to):
- Aged Care Award 2010
- Airport Employees Award 2020
- Amusement, Events and Recreation Award 2020
- Building and Construction General On-site Award 2020
- Food, Beverage and Tobacco Manufacturing Award 2020
- Registered and Licensed Clubs Award 2020
- Social, Community, Home Care and Disability Services Industry Award 2010
- Aluminium Industry Award 2020
- Cleaning Services Award 2020
- Health Professionals and Support Services Award 2020
- Rail Industry Award 2020
- Road Transport (Long Distance Operations) Award 2020
- Road Transport and Distribution Award 2020
- Vehicle Manufacturing, Repair, Services and Retail Award 2020
- Clerks - Private Sector Award 2020
- Commercial Sales Award 2020
- Educational Services (Schools) General Staff Award 2020
- Miscellaneous Award 2020
- Ports, Harbours and Enclosed Water Vessels Award 2020
- Sporting Organisations Award 2020
- Telecommunications Services Award 2020
- Aboriginal Legal Rights Movement Award 2016
- Airservices Australia Enterprise Award 2016
- Australian Broadcasting Corporation Enterprise Award 2016
- Australian Government Industry Award 2016
- State Government Agencies Award 2020
- Health Professionals, Medical Scientists and Support Services (Victoria) State Reference Public Sector Modern Award 2018
The Full Bench has confirmed that its provisional views expressed in relation to the Stage 1 Awards are also applicable to the Group 1-3 Awards in Stage 2.
Draft determinations amending the casual employment award terms in the Groups 1-3 Awards were also issued and can be located here: Group 1, Group 2 and Group 3.
The Full Bench has expressed provisional views in relation to each of the Group 4 Awards and has invited interested parties to make submissions. Draft determinations in relation to Group 4 Awards have not been issued to date.
Employers should regularly check relevant modern awards for updates. You can access the decisions and statements in relation to the Casual Award Terms Review here.
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