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.  

Casual Terms Award Review

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 inconsistent 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):  

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.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.