Recent changes to modern awards concerning casual employment

The new definition of casual employment in the Fair Work Act 2009 (Cth) (Fair Work Act) has created a ripple effect of changes to the Employment space. In the most recent development, the Fair Work Commission has ordered that certain variations be made to the terms of five “stage one” modern awards (“stage one awards”) with effect from 27 September 2021.

With further clarity on the definition of casual employment, the variations to modern awards are yet another reminder for employers of their obligation to comply under the new casual conversion regime in the Fair Work Act.

Which modern awards are affected?

The stage one awards, which are the first in a series of awards to be amended, are:

• General Retail Industry Award 2020;
• Hospitality Industry (General) Award 2020;
• Manufacturing and Associated Industries and Occupations Award 2020;
• Educational Services (Teachers) Award 2020; and
• Pastoral Award 2020.

The variations to the stage one awards are aimed at ensuring consistency between the new regime relating to casual employees in the Fair Work Act and the terms of the affected modern awards.

What is the change to the modern awards?

The amendments to the stage one awards will define casual employment to be “assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party”. This change is in line with the new definition of “casual employment”, inserted at section 15A of the Fair Work Act, which states that a person is a casual employee if the offer of employment was made on the basis that there is no firm advance commitment to continuing and indefinite work, and the offer is accepted on that basis.

The changes made to these awards are likely to be replicated across other awards, with the Commission now accepting comments and opinions on the changes to be made to “stage two” awards.

What should you do next?

The amendments to these awards, along with the amendments to the Fair Work Act and the High Court decision in WorkPac Pty Ltd v Rossato, provide further clarity to the meaning of casual employment. They serve as a timely reminder to ensure that you have complied with your obligations under the new casual conversion regime in the Fair Work Act by 27 September 2021.

Employers should also be ensuring that they have in place well-drafted employment agreements when engaging casual employees. In addition, employers will also need to ensure that their casual conversion process in their operations is in line with the Fair Work Act.

If you would like your casual employment agreements updated or further advice in in relation to these recent developments, please contact the Macpherson Kelley Employment, Safety and Migration team.

^{_{Published 27 August 2021
This article was written and supplied by Stella Gehrckens, Erin McLeod & Natalie Montalto from Macpherson Kelly}}