Changes have been made to the National Employment Standards (NES) that will impact casual workers in the community sector. These changes came into effect in September 2021.
The changes mean that casuals who have worked regular hours for the last six-months should be offered a permanent position, unless there are “reasonable grounds” not to.
We have developed best practice principles to implement the new casual conversion laws in a way that promotes good permanent jobs in community and disability services.
Note: While the law does not apply to organisations with less than 15 employees, all community sector organisations are encouraged to promote secure work arrangements and can use these principles to convert casuals in their workplaces.
Best practice principles to casual conversion
1. Work in advance with the Australian Services Union to ensure everyone understands the new laws and casuals rights
Everyone in your organisation should be informed about casual conversions and understand the benefits. Casual staff should be given the opportunity to participate in discussions with the ASU about their rights in the new conversion process.
2. When making offers to convert casuals to permanent positions, employers should ensure that offers reflect the regular hours already worked and provide predictable hours and income for workers.
The new laws require employers to make offers to casuals to convert to permanent roles if they have worked at least 12 months as a casual and the across the last 6 months of that period they have worked a regular pattern of hours. Therefore, the offer should be consistent with that regular pattern of hours. It should provide no reduction in hours and the reflect the same pattern of regular hours worked and not worked.
3. If an organization does not make an offer of permanent conversion, that decision should only be based only on reasonable grounds that promotes secure work.
Being subject to Government funding is not in itself reasonable grounds to not make an offer. Examples of reasonable grounds may include:
• If the funding body has announced that the program is ending within the next 12 months and will not be replaced by another similar program
• If the funding is based on individual client packages (for example an NDIS plan) and it is known that the participant is exiting your service in the next 12 months or that they will significantly change their plan.
• If the funding program is based on donations and it is known that your donations will be significantly reducing in the next 12 months
The following examples are not reasonable grounds to deny an offer of permanency if you support secure work in our sector:
• Being subject to Government funding that is based on fixed year terms (e.g. a 4 year funding contract)
• The fact that funding is based on individual client packages (for example an NDIS plan)
• The fact that an organisation is reliant in part on donations
• If the funding is due to end soon but it is known the program itself will continue following a re-tender process
4. Casual workers should be encouraged to accept genuine permanent offers, but not compelled or disadvantaged if they do not accept the offer
• Under the new NES provisions, employers cannot make it a requirement that casual workers accept offers, and they should not take any adverse action against a casual who does not accept an offer.
• There are legitimate reasons why a casual worker may not want to accept a permanent offer. For example, if the permanent role results in reduced take home pay.
• Despite the NES timeframes about making and accepting offers for conversion, it does not stop casuals from requesting a permanent role later. Employers could tell casuals that the offer will stand if they change their mind.
“Whilst the exercise of choice by consumers remains paramount and more flexible care arrangements are vitally important, a more stable, permanent workforce in aged, disability and community service is vital to ensure sustainable, quality care. The current over reliance on a highly casualised, high turnover workforce is a growing threat to good quality, responsive care especially for those most vulnerable and in need of long term support.”
Robert Fitzgerald AM, NSW Ageing and Disability Commission