Our Industrial Relations experts at TTIA have provided a breakdown of the changes made to the Timber Industry Award 2010.
In October 2018, the Fair Work Commission inserted a standard casual conversion clause in modern awards that did not already have a clause of this nature. The Timber Industry Award 2010 was not amended to include the standard casual conversion provision at that time because there was a casual conversion provision in the award, although it only applied to the Wood and Timber Furniture stream employees.
On Friday, 1 May 2020, the Fair Work Commission amended the Timber Industry Award 2010 to include the new standard casual conversion provision so that it applies to all employees classified under this award. In summary, this clause enables casual employees who have worked a regular pattern of hours on an ongoing basis for at least 12 months with the right to request to convert to full-time or part-time employment. The request must be in writing. Employers may only refuse the request on reasonable grounds, and after consultation with the employee. The clause also includes details about what may constitute reasonable grounds for refusal, and how the conversion is to be implemented. The casual conversion clause is inserted below:
12.3 Right to request casual conversion
(a) A person engaged by a particular employer as a regular casual employee may request that their employment be converted to full-time or part-time employment.
(b) A regular casual employee is a casual employee who has in the preceding period of 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee or part-time employee under the provisions of this award.
(c) A regular casual employee who has worked equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to full-time employment.
(d) A regular casual employee who has worked less than equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to part-time employment consistent with the pattern of hours previously worked.
(e) Any request under this subclause must be in writing and provided to the employer.
(f) Where a regular casual employee seeks to convert to full-time or part-time employment, the employer may agree to or refuse the request, but the request may only be refused on reasonable grounds and after there has been consultation with the employee.
(g) Reasonable grounds for refusal include that:
(i) it 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 in accordance with the provisions of this award – that is, the casual employee is not truly a regular casual employee as defined in paragraph (b);
(ii) it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;
(iii) 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; or
(iv) 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.
(h) For any ground of refusal to be reasonable, it must be based on facts which are known or reasonably foreseeable.
(i) Where the employer refuses a regular casual employee’s request to convert, the employer must provide the casual employee with the employer’s reasons for refusal in writing within 21 days of the request being made. If the employee does not accept the employer’s refusal, this will constitute a dispute that will be dealt with under the dispute resolution procedure in clause 10. Under that procedure, the employee or the employer may refer the matter to the Fair Work Commission if the dispute cannot be resolved at the workplace level.
(j) Where it is agreed that a casual employee will have their employment converted to full-time or part-time employment as provided for in this clause, the employer and employee must discuss and record in writing:
(i) the form of employment to which the employee will convert – that is, full-time or part-time employment; and
(ii) if it is agreed that the employee will become a part-time employee, the employee’s hours of work fixed in accordance with clause 12.4.
(k) The conversion will take effect from the start of the next pay cycle following such agreement being reached unless otherwise agreed.
(l) Once a casual employee has converted to full-time or part-time employment, the employee may only revert to casual employment with the written agreement of the employer.
(m) A casual employee must not be engaged and re-engaged (which includes a refusal to re-engage), or have their hours reduced or varied, in order to avoid any right or obligation under this clause.
(n) Nothing in this clause obliges a regular casual employee to convert to full-time or part-time employment, nor permits an employer to require a regular casual employee to so convert.
(o) Nothing in this clause requires an employer to increase the hours of a regular casual employee seeking conversion to full-time or part-time employment.
(p) An employer must provide a casual employee, whether a regular casual employee or not, with a copy of the provisions of this subclause within the first 12 months of the employee’s first engagement to perform work. In respect of casual employees already employed as at 1 May 2020, an employer must provide such employees with a copy of the provisions of this subclause by 1 August 2020.
(q) A casual employee’s right to request to convert is not affected if the employer fails to comply with the notice requirements in paragraph (p).
What do I do next?
To comply with clause 12.3(p) of the new provision, you must give notice to casual employees of their right to seek permanent employment (including a copy of the Award’s casual conversion provisions) to:
- Existing employees – within three (3) months of the commencement of this provision, being 1 August 2020.
- New casual employees – within 12 months of hiring
If you have an employee who has been employed as a casual and has worked for you for at least twelve months, on an ongoing pattern of hours which is likely to continue into the future, they may request permanent employment. Any request for permanent employment (full-time or part-time) by an employee must be in writing. A request may only be refused where:
- You have consulted with the employee about the request; and
- You have reasonable grounds for the refusal, based on based on facts which are known or reasonably foreseeable.
When refusing a request, the employer must provide the casual employee with the employer’s reasons for refusal in writing within 21 days of the request being made. An employee may lodge a dispute in the FWC about whether a refusal was based on reasonable grounds, if the dispute has not been able to be addressed at the workplace level.
If you and the employee agree to convert casual employment to permanent part-time employment, this conversion to part-time employment must be consistent with the hours previously worked.
Employers should note the Award requirements to discuss and record agreed working arrangements for part-time employees (including those who have recently converted from casual employment). If it is agreed that the employee will become a part-time employee, this means the days the employee will be required to attend for work and the starting and finishing times for each such day must be in writing.
This article was written and provided by Janet Gilbert of Industrial Relations Experts TTIA