4 yearly review of modern awards – casual & part-time employmentJuly 10, 2017
In a decision provided by the Fair Work Commission (‘the FWC’) as part of the 4 yearly review of modern awards, the FWC has decided to vary a number of provisions in relation to casual and part-time employment. Various employer and union bodies submitted applications for variation of a broad number of modern awards (referred to by the FWC as “common claims”) and also some directed at specific modern awards.
Most notably, the FWC has decided to vary 85 modern awards for the purposes of including a casual conversion provision whereby casual employees may elect to convert to full-time or part-time employment.
The rationale of the FWC is the potential for employers to notionally deny casual employees access to those entitlements afforded to full-time and part-time employees under the National Employment Standards (‘the NES’), by choosing to engage them on a casual basis irrespective of the incidents of employment. While the FWC acknowledged that the casual loading compensates employees for the financial benefits of those entitlements, it affirmed that it does not take into account the detriments which may attach to the absence of such benefits, particularly for adult long-term casuals who are financially dependent on their casual employment.
The FWC has developed a draft model clause, which provides the following features:
- A qualifying period of 12 calendar months;
- A qualifying criterion that the casual employee has worked over the qualifying period a pattern of hours on an on-going basis, without significant adjustment, that could continue to be performed in accordance with the full-time or part-time employment provision of the relevant modern award;
- A requirement that employers provide all casual employees (whether they become eligible for conversion or not) with a copy of the casual conversion clause within the first 12 calendar months after their initial engagement; and
- The ability for employers to refuse conversion on the grounds that it would require:
– A significant adjustment to the casual employee’s hours of work in order to accommodate them in full-time or part-time employment in accordance with the terms of the applicable modern award; or
– it is known or reasonably foreseeable that the casual employee’s position will cease to exist; or
– The employee’s hours of work will significantly change or be reduced within the next 12 months; or
– On other reasonable grounds based on facts which are known or reasonably foreseeable.
Among some of the specific variations to modern awards, the FWC has decided to make the following amendments:
- A facilitative provision with a minimum ‘floor‘ of a 3 hour minimum casual engagement for those employees covered by the Manufacturing and Associated Industries and Occupations Award 2010, the Vehicle Manufacturing, Repair, Services and Retail Award 2010, the Graphic Arts, Printing and Publishing Award 2010 and the Food, Beverage and Tobacco Manufacturing Award 2010;
- Provide employers greater flexibility with the rostering of working hours of part-time employees for those covered by the Hospitality Industry (General) Award 2010, the Registered and Licensed Clubs Award 2010 and the Restaurant Industry Award 2010;
- Grant overtime penalty rates to casual employees for those covered by the Hospitality Industry (General) Award 2010, the Registered and Licensed Clubs Award 2010, the Restaurant Industry Award 2010, General Retail Industry Award 2010, the Fast Food Industry Award 2010, and the Hair and Beauty Industry Award 2010, and the Horticulture Award 2010;
- Clarify that an agreed part-time work arrangement does not necessarily have to provide for the same guaranteed number of hours in each week for those employees covered by the Social, Community, Home Care and Disability Services Industry Award 2010; and
- Reduce the minimum casual engagement from 3 hours to 2 hours for those employees covered by the Pastoral Award 2010.
The above variations recommended by the FWC are subject to a number of particular conditions relevant to each modern award and the FWC is still inviting further submissions be made by interested parties until later this year.
If you would like any further information in relation to these variations and how they might affect your business, please don’t hesitate to contact your Livingstones Consultant on (07) 3833 1200, or email us at firstname.lastname@example.org
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