New casual provisions in the Fair Work Act 2009

Published on:
Monday, 19 July, 2021
Employee Relations

Casual Terms Award Review 2021

On Friday, 16 July 2021 the Full Bench of the FWC published a decision ([2021] FWCFB 4144) stating the principles it will apply to resolve any inconsistencies between casual clauses in modern awards and the FW Act, and to issue draft determinations for the six awards the subject of Stage 1 of the Review, including the General Retail Industry Award 2020 (Retail Award).

As the casual terms of the Retail Award are substantially the same as the Local Government Industry Award 2020 (LGIA), it is likely that the approach taken by the FWC for the Retail Award will be followed for the LGIA.

We anticipate that the Retail Award will be amended to incorporate the FW Act definition of casual, and to delete the casual conversion clauses and replace it with a reference to the NES. In due course, when the LGIA provisions are reviewed as part of the Stage 2 - Group 3 of the Review, we anticipate the same changes will be made to the LGIA as are made to the Retail Award. Local Governments will be invited to make submissions during the Stage 2 - Group 3 proceedings to consider whether this approach will cause any practical difficulties in the interpretation and operation of the LGIA.

Complete details of the Review can be found on the FWC website here.

Request for feedback on potential LGIA changes

We are asking Local Governments to let us know if they anticipate any issues that would arise from the LGIA being amended as follows:

  1. Deletion of the current definition of casual employee from clause 11.1 which reads ‘A casual employee is an employee who is engaged and paid as a casual employee’ and replaced with the new definition of casual employee in section 15A of the FW Act. 
  2. Deletion of clause 11.5 (right to request casual conversion) and replaced with ‘(a) Casual conversion is provided for in the NES.’
  3. Addition of a note to clause 31 (dispute resolution) that a matter under this award or in relation to the NES may include whether a person is a casual employee or about the operation of casual conversion clauses.

Deadline for response

If you have any feedback on the proposed amendments, please email by Wednesday, 28 July 2021. The deadline to provide submissions on proposed changes to the Retail Award (which we suspect will be replicated for the LGIA) is Friday, 30 July 2021.

The WALGA ER team will monitor the progress of the Review closely and provide updates in the future.

Fair Work Information Statement

The Fair Work Commission recently released a new Fair Work Information Statement which can be downloaded here.

All employers operating in the Federal industrial relations system must provide new employees a copy of the Fair Work Information Statement before, or as soon as practicable after, they start the new job. A failure to provide the Fair Work Information Statement to new employees is a breach of the NES.

A reminder that a new Casual Employment Information Statement is now required for casual employees. Please see ER Alert 7/2021 for further information.

If you have any questions about this alert, please email WALGA Employee Relations or call 1300 366 956.

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