Following changes to the FWA in March 2021, all businesses are required to provide casual staff with the Casual Employment Information Statement (CEIS) and comply with the casual conversion requirements in the Act and the Awards, by 27 September 2021.
As ACAPMA has covered before (https://acapmag.com.au/2021/04/employer-alert-casual-employment-information-statement-to-be-provided-to-your-casuals-now/), the Fair Work Act, was changed on 27 March 2021. The changes followed years of consternation caused by a lack of definition in the Act of casual employment, and occurred in the context of the Rossato and Skene cases that saw casual employees deemed to be permanent staff entitled to paid leave and permanent entitlements.
ACAPMA was involved in the Attorney Generals IR Roundtable that led to the changes in the Act, and provided important insight into practical industry experience of operational casual conversion clauses, as one of the few industries that had operational clauses in both wholesale and retail sides of the industry (https://acapmag.com.au/2020/07/acapma-casuals-survey-we-need-your-information-to-inform-sensible-solutions/).
After much political wrangling the changes were made to the Fair Work Act. The result was a definition of a casual, clarity that where an employee is engaged as a casual and paid as a casual that they are a casual and in the event of any deeming to be permanent at a later date the casual loading (or in fuel retail the casual rate) is recognised as being paid as compensation for a lack of paid leave, notice of termination and redundancy (https://acapmag.com.au/2021/03/casuals-steps-for-business-now/). This long fought clarity reflects common sense, and brought confidence to industry.
The changes also standardised the casual conversion process.
The changes to the Act also led to the enumeration of Casual rights and operations in the Casual Employment Information Statement (CEIS). Small business employers were required to provide casual employees with a copy of the CEIS on engagement and to existing staff when it was published in April 2021, but there was a delay for other businesses, who have until 27 September 2021 to provide all current (and future) casual staff with a copy of the CEIS.
Employers will be familiar with the Fair Work Information Statement (FWIS) that has to be provided to all staff. As per Section 125 of the Fair Work Act, before the changes, an employer must give each employee the Fair Work Information Statement before, or as soon as practicable after, they employee starts employment. The Fair Work Information Statement is updated regularly and the most recent version can be found at the perpetual link here – https://www.fairwork.gov.au/employee-entitlements/national-employment-standards/fair-work-information-statement.
The changes to the Fair Work Act that passed late in March 2021 add to this Section and creates a second Information Statement, one that is specifically for Casuals – the CEIS. Like the FWIS the CEIS is updated regularly and the most recent version can be found at the perpetual link here – https://www.fairwork.gov.au/employee-entitlements/national-employment-standards/casual-employment-information-statement
This Casual Employment Information Statement must be given to casual employees IN ADDITION to them receiving the Fair Work Information Statement. Casual Employees must receive both the FWIS and the CEIS.
The changes made in March 2021, particularly the inclusion of casual conversion into the Act has led to some confusion, particularly for those few industries that have unique casual conversion arrangements. The confusion springs from the fact that the changes to the Act are in force now…and they state that casual conversion has to be communicated to staff after 12 months of engagement…but the Vehicle Repair, Service and Retail Award 2020 states that casual conversion has to be communicated to staff after 6 months of engagement.
Q: When am I supposed to do the Casual Conversion for my staff? 6 months or 12 months?
A: In Fuel Retail (Vehicle Repair, Service and Retail Award 2020) – The short answer is…6 months.
The long answer is that the Fair Work Commission is in the process of reviewing and changing the Awards to reflect the changes that were made to the Act. This is a long process that is being done in batches, with the first few modern awards being reviewed for change now.
In the mean time the principle of ‘most beneficial’ has to apply. This means that if the Award has a more beneficial clause for an employee than the Act, then that is what has to apply.
As the Vehicle Repair, Service and Retail Award 2020 provides for casual conversion to happen after a shorter amount of time than the Act it is the Award that will apply for now.
In Fuel Transport (Road Transport and Distribution Award 2020) – The short and long answer is 12 months.
In Fuel Admin (Clerks – Private Sector Award 2020) – the short and long answer is 12 months.
Q: Has ACAPMA published an updated Casual Conversion Guidance?
A: Yes. ACAPMA Members can access detailed guidance on employing casuals in the fuel industry, including templates and process for Casual Conversion. All ACAPMA Members will receive the Employing Casuals Guide with the pack of Employment Guides in late September 2021, however ACAPMA Members can request a copy now via firstname.lastname@example.org
Q: Will ACAPMA update the Casual Conversion Guide when our Award has its review?
A: Again yes we will, and we will notify all members…here and directly as we do with any Award change.
Q: Is it likely that our Award will change to 12 months?
A: Changes to the Award are subject to submission and comment and the direction of the Fair Work Commission, so speculating now is not something that we can do…but we will let you know
Q: When our Award is reviewed will the things we need to do for casual conversion change?
A: Yes it is likely the format and wording will change to meet a template, the timing may change, but until the Award is up for review we wont know what that change looks like.
Q: Has ACAPMA released new Casual Engagement Documents?
A: Yes. ACAPMA Members can access detailed guidance on employing casuals in the fuel industry, including templates and process for Engagement. All ACAPMA Members will receive the Employing Casuals Guide and the Engagement Documents Guide with the pack of Employment Guides in late September 2021, however ACAPMA Members can request a copy now via email@example.com
ACAPMA advises members to;
download the CEIS and provide all casual employees with a copy of the CEIS now
add distribution of the CEIS to the businesses new starter process for casual staff
add distribution of the CEIS to the businesses Confirmation of Employment process for casual staff
Changes to the Fair Work Act: https://acapmag.com.au/2021/03/casuals-steps-for-business-now/
Casual Employment Information Statement: https://www.fairwork.gov.au/employee-entitlements/national-employment-standards/casual-employment-information-statement
Here to Help
ACAPMA members can access resources and can call ACAPMA for advice and support by contacting the employment professionals via firstname.lastname@example.org. HR Highlights are general information for you to consider and do not constitute advice on your specific situation
Elisha Radwanowski BCom(HRM&IR)