Aitken Legal Senior Associate Nikolina Palasrinne discusses a current hot topic in employment law: The latest employment law changes and how they apply to managing casual employees in schools. This article is the first in a series for School Law News. Nikolina presented on this topic at the School Law Summit in Queensland last month. 
There were several significant employment law changes introduced in 2018 relating to casual employees. These changes have the potential to affect any school that engages casual employees. This article is Part 1 of a three-part series dealing with the recent changes affecting casual employment:
Part 1: Will look at the new casual conversion obligations under the Modern Awards that apply to schools.
Part 2: Will look at recent cases that deal with the question of whether someone is truly a casual employee at law, and what this means for schools.
Part 3: Will look at the legal risks associated with getting it wrong (i.e. calling someone a casual when they are really a permanent employee). We will also outline some practical strategies on how you can proactively deal with these recent changes to make sure you meet your employment law obligations.
What are your Casual Conversion obligations?
As part of its 4-yearly review of Modern Awards, the Fair Work Commission determined that from 1 October 2018, most Awards would be amended to include a model ‘casual conversion’ clause. This new model clause broadly provides that ‘regular casuals’ can request to convert to permanent employment status if, in the preceding 12 months, the casual employee has worked a pattern of hours on an ongoing basis that, without significant adjustment, the casual could continue to perform as a full-time or part-time employee. This is not a strict right to convert to permanent employment. However, the request can only be refused by an employer on ‘reasonable business grounds’. It is important to note that this right to request permanent employment is available on a continuous basis throughout their casual employment so long as the casual employee meets the above criteria (i.e. it is not a once off right).
Not all Modern Awards contain a casual conversion clause and there are some points of difference in the Awards that do include this clause. This means that employers need to check the Awards that cover their employees to determine their specific casual conversion obligations.
In the education industry:
- a casual conversion clause was inserted into the Educational Services (Schools) General Staff Award 2010;
- a casual conversion clause was not inserted into the Educational Services (Teachers) Award 2010; and
- a casual conversion clause was not inserted into the Educational Services (Post-Secondary Education) Award 2010.
Therefore, the changes regarding casual conversion will only affect Employers who employ casual employees under the Educational Services (Schools) General Staff Award 2010 (‘the General Staff Award’). This might include (but is not limited to) the following employees: boarding supervision services; classroom support services; curriculum/resources services; instructional services; nursing services; preschool/childcare services; school administration services; wellbeing services; and school operational services (e.g. construction, maintenance, school facility management, security, cleaners, uniform shop and canteen, and bus drivers).
So, for example, if you have a casual nurse that works 38 hours per week and has done so on a regular and consistent basis for the last 12 months, then they will be eligible to request to convert to a full-time employment status.
What is the casual conversion process?
The casual conversion clause in the General Staff Award[1] requires:
a. that any request by an employee to convert to permanent employment must be in writing and provided to the Employer;
b. that an employer may only refuse the request on ‘reasonable grounds’ and only after there has been consultation with the employee;
c. Reasonable grounds for refusal include that:
(1) the request would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time or part-time employee – that is the casual employee does not meet the definition of ‘regular casual employee’;
(2) It is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;
(3) It is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months;
(4) It is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.
d. For any ground of refusal to be reasonable, it must be based on facts which are known or reasonably foreseeable;
e. Where the employer refuses a regular casual employee’s request to convert, the employer must provide the casual employee with written reasons within 21 days of the request being made;
f. If the employee does not accept the employer’s refusal, this will constitute a dispute that will be dealt with under the General Staff Award’s dispute resolution procedure. Under that procedure, the employee or employer may refer the matter to the Fair Work Commission if the dispute cannot be resolved at the local level;
g. Where it is agreed that a casual employee will have their employment converted to full-time or part-time employment, the parties must discuss and record in writing:
(1) The form of employment to which the employee will convert – that is, full time or part time;
(2) If it is agreed that the employee will become part-time, the regular working pattern; hours and days of work; the number of weeks of the school year the employee will work; and their starting and finishing times each day.
h. Once a casual employee has converted to full-time or part-time employment they can only revert back to casual status with the written agreement of the employer; and
i. A casual must not be engaged and re-engaged (which includes a refusal to re-engage), or have their hours reduced or varied, as a means to avoid any right or obligation under the casual conversion clause – doing so may constitute grounds for a General Protections application (which we detail later in this paper).
Importantly, the clause also provides that an employer must provide all casual employees (whether they are a regular casual or not) with a copy of the casual conversion clause within the first 12 months of their first engagement to work. In respect of any casual employees already employed as at 1 October 2018, the clause needed to have been given to those employees by 1 January 2019.
Employers should be aware that if an employee disagrees with the decision to refuse their request to convert to permanent employment, the employee may make an application for the dispute to be heard by the Fair Work Commission.
Other points to note – watch this space
On 13 February 2019, the Federal Government introduced a bill into Parliament to amend the Fair Work Act 2009 to insert into the National Employment Standards a new right for eligible casual employees to request to convert to full-time or part-time employment[2]. If such provisions are inserted into the FWA, this will mean that the casual conversion obligations apply to all national system employers, irrespective of whether the employee is covered by a Modern Award or not.
Nikolina Palasrinne is a Senior Associate at Aitken Legal, a boutique firm specialising in employment law for employers. She has been practising in the area of employment law since 2011. She previously worked as a Senior Associate at Adams Wilson Lawyers, where she represented both employers and employees. This experience has provided her with a holistic understanding of the complex world of employment law and the vital steps that employers must take to ensure adequate protection for their business. She has advised individuals, corporations, associations and non-for-profit organisations on all thing’s employment law throughout Australia. Nikolina frequently presents to school administrators, school counsellors and teachers on relevant employment law obligations. Contact Nikolina at nikolina.palasrinne@aitkenlegal.com.au or connect via LinkedIn. You can also connect with Aitken Legal via LinkedIn.
[1] See clause 10.6 of the General Staff Award.
[2] Fair Work Amendment (Right to Request Casual Conversion) Bill 2019
