Man working at an e-commerce business shipping orders

Changes to casual employment laws

Recent changes to workplace laws in Australia have redefined what it means to be a casual employee. These changes impact: 

  • how casual employment is assessed 
  • the rights of casual workers to convert to permanent employment 
  • employer obligations to provide casual employment information statements. 

Employers should be aware of the changes to ensure compliance with the new laws and avoid potential penalties. 

New definition of a casual worker 

Previously, an employment contract was the determining factor when deciding if an employee was a casual. The definition of casual employee changed on 26 August. For employees who started from 26 August 2024, the new casual employee definition under section 15A of the Fair Work Act 2009 applies. 

This means a person is a casual employee if, when they start employment: 

  • there is no firm advance commitment to ongoing and indefinite work, and 
  • the employee is entitled to casual loading or a specific pay rate for casual employees under an award, registered agreement, or employment contract. 

Understanding ‘firm commitment to ongoing work’  

When determining if a worker is truly a casual employee, what matters is the actual working arrangement and not just what is written in the employment contract. Factors that may indicate a firm commitment to ongoing work, suggesting an employee is not casual, include whether: 

  • the employer is required to offer work or the employee must accept it, and whether this happens in practice 
  • it’s likely there will be ongoing work available within the business similar to the work the employee usually performs 
  • there are full-time or part-time employees performing similar work as that of the employee 
  • the employee has a regular pattern of work. 

Other factors may also be considered. No single factor decides if a worker is a casual employee, and not all factors need to be met. To assess firm advance commitment, you can consider the employment contract alone or alongside any mutual understanding or expectation between the employer and employee. This understanding can be determined by how the contract is carried out in practice and the actions of both parties after it is signed. 

Additional Information can be found on the Fair Work Ombudsman website. 

Casuals employed before 26 August 2024 

Casual employees engaged before 26 August 2024 will keep their casual status unless they move to permanent employment. The process for casual employees transitioning to permanent employment also changed on 26 August 2024. Previously, this process was known as ‘Casual Conversion’, but it has now been replaced by the ‘Employee Choice’ pathway. A transitional period is in place.  

For more information see the Fair Work Ombudsman Website. 

Casual conversion – new employee choice pathway 

Casual employees who have worked for at least 12 months in a small business, or six months for other businesses, now have the right to request conversion to permanent employment if they believe they no longer meet the legal definition of a casual worker. The notice to request conversion to permanent employment must be submitted to the employer in writing. Any period of employment prior to 26 August 2024 will not be counted in assessing a casual employee’s eligibility under this pathway. 

If a casual employee submits a written request for conversion, employers are required to: 

  • engage in consultation with the employee about the decision, 
  • respond in writing within 21 days, either accepting or declining the request, 
  • provide a valid reason if declining the request, as refusal is only permitted on limited grounds under the Fair Work Act. 

Valid reasons for an employer refusing a request include: 

  • there would be significant impacts on the operations of the business 
  • there would need to be substantial change to the business’s organisation 
  • the employee still meets the definition of a casual employee. 

Employers should also be aware that if they fail to respond or if an employee disagrees with a refusal, the worker has the right to escalate the matter to the Fair Work Commission. 

For more information see the Fair Work Ombudsman website.  

Casual Employment Statement  

Under the updated laws, business owners must provide a Casual Employment Information Statement to all new casual employees at the start of their employment and at the following regular intervals:  

  • Small businesses must reissue the statement after 12 months of employment 
  • Other employers must reissue the statement after 6 months, 12 months, and every 12 month anniversary of employment. 

The most recent version of the Casual Employment Information Statement must always be used. Employers should regularly check the Fair Work Ombudsman website to ensure compliance.  

Casual leave entitlements  

Casual employees do not receive most traditional leave benefits, but they are entitled to some types of unpaid and paid leave.  

Unpaid Carer’s Leave 

Casual employees can take two days of unpaid carer’s leave each time an immediate family or household member requires care or support due to illness, injury, or an unexpected emergency. 

Unpaid Compassionate Leave 

Casuals are entitled to two days of unpaid compassionate leave in cases where: 

  • a close family or household member passes away 
  • a family or household member develops a life-threatening illness or injury 
  • they, their partner or household member experience a miscarriage or stillbirth. 

Paid Family and Domestic Violence Leave 

All employees, including casuals, are entitled to 10 days of paid family and domestic violence leave per year from their start date. This entitlement does not accumulate if unused. 

Unpaid Community Service Leave 

Casual employees can take unpaid community service leave for activities such as: 

  • voluntary emergency management activities 
  • jury duty. 

A casual employee is entitled to take community service leave while they are engaged in the eligible activity and for reasonable travel and rest time required by the activity. 

Flexible Working 

Casual employees can also request flexible working arrangements and take unpaid parental leave if they: 

  • have been employed by their employer as a casual employee on a regular and systematic basis over at least 12 months 
  • reasonably expect to continue being employed by the employer on a regular and systematic basis. 

Additional information on casual entitlements can be found on the Fair Work Ombudsman website.