Changes to the Local Government Industry Award 2010
ER
Monday, September 10, 2018
Changes to the Local Government Industry Award 2010
 
On Thursday, 30 August 2018 the Fair Work Commission ( FWC) released two draft determinations to vary the Local Government Industry Award 2010 ( LGIA 2010) as part of the four yearly review of modern awards.
 
The changes to the LGIA 2010 that will take effect from Monday, 1 October 2018 are to include a casual conversion clause and a minimum engagement of two hours for casual employees.
 
As advised in our previous alert, the FWC is accepting comments on the draft determinations until Thursday, 6 September 2018. Please email E mployee Relations as soon as possible with your comments or provide separate comment to the FWC directly.
 
The first draft determination is for the insertion of a new clause 10.5(d) into the LGIA which provides for a two hour minimum engagement period for casual employees:
 
“A casual employee must be engaged and paid for at least two consecutive hours of work on each occasion they are required to attend work.”
 
The second draft determination is for the insertion of a casual to permanent employment conversion clause:
 
“10.6 Right to request casual conversion
 
  1. 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.
     
  2. 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.
     
  3. 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.
     
  4. 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.
     
  5. Any request under this subclause must be in writing and provided to the employer.
     
  6. 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.
     
  7. 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; 

    (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; or

    (v) acceptance of the request by a local government would contravene a merit selection employment requirement contained in State or Territory legislation applicable to local governments. 
     
  8. For any ground of refusal to be reasonable, it must be based on facts which are known or reasonably foreseeable.
     
  9. 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 9. 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.
     
  10. 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 matters referred to in clause 10.4(c).
     
  11. The conversion will take effect from the start of the next pay cycle following such agreement being reached unless otherwise agreed.
     
  12. 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.
     
  13. 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.
     
  14. 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.
     
  15. 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.  
     
  16. 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 October 2018, an employer must provide such employees with a copy of the provisions of this subclause by 1 January 2019.
     
  17. 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).  
Characteristics of casual employment confirmed by the Full Court of the Federal Court
 
In the recent decision of WorkPac Pty Ltd v Skene [2018] FCAFC 131, the Full Court of the Federal Court held that the employer of a casual labour hire employee was required to pay the employee compensation for not being provided with annual leave entitlements.
 
The labour hire employee was engaged as a dump-truck operator at a mine on a FIFO roster. The employee was provided with accommodation at no additional cost, his hours of work were regular and predictable with the shifts set one year in advance, and the employee worked continuously except for seven days of unpaid leave that were pre-arranged with his employer. The employee was paid a flat rate of pay and his contract did not clearly designate that his pay included casual loading.
 
The Full Court at paragraph 172 of the judgment stated that a “casual employee has no firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern of work. Nor does a casual employee provide a reciprocal commitment to the employer.”
 
This decision also confirmed the relevant characteristics of casual employment as set out in previous decisions of the Federal Court and the FWC which include irregular work patterns, intermittent and unpredictable work, discontinuity and uncertainty as to the period over which employment is offered.
 
When the Court assesses whether an employee is a “casual employee” it will consider the true nature of the relationship between the employer and employee. Therefore despite an employee being paid a casual loading, having an hour’s notice for termination and/or being required to submit weekly timesheets, if the employee works a regular, continuous and predictable work pattern, there is a risk the employee may not be deemed “casual” by a Court.
 
We recommend Local Government employers:
 
  1. regularly monitor casual employment arrangements and consider converting casual arrangements to permanent or fixed term part-time or full-time employment where an employee is working a regular work pattern for an extended period of time;
     
  2. review their employment contracts to ensure if an employee is casual their contract includes:
    1. the casual loading paid to the employee expressed as a clearly identifiable amount; and
       
    2. a set-off clause to ensure the total remuneration paid to the employee is set-off against entitlements to annual leave and personal leave that would otherwise accrue if the employee weren’t casual.
 
Please contact WALGA Employee Relations with any questions regarding this alert on 1300 366 956 or email  WALGA Employee Relations.