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Fair Work Commission Decision on Casual and Part-Time Work

Yesterday the Fair Work Commission handed down a decision in the casual and part time proceedings as part of the 4 Yearly Review. The decision address
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Fair Work Commission Decision on Casual and Part-Time Work

Fair Work Commission Decision on Casual and Part-Time Work

6 July 2017

Yesterday the Fair Work Commission handed down a decision in the casual and part time proceedings as part of the 4 Yearly Review. The decision addresses a myriad of issues and claims spanning over 100 modern awards concerning casual and part time employment.

Most prominently, the Commission decision means that:

  • All modern awards will now include a casual conversion clause allowing eligible casual employees to convert to permanent employment.
  • Modern Awards will no longer permit engagement of casual employees for shorter than 2 hour shifts.
  • Casual employees will now receive new entitlements to overtime in a number of modern awards including Horticulture, Hospitality, Registered and Licensed Clubs and Restaurants.

The Proceedings

The casual and part-time case was centered around an Australian Council of Trade Unions (ACTU) and Australian Manufacturing Workers' Union (AMWU) claim which sought in almost all modern awards:
  • a 4 hour minimum engagement period for part-timers and casuals;
  • a general and unilateral right for casual employees to convert to permanent employment after 6 months (excluding “irregular casual employees”); and
  • a prohibition on the engagement of additional part time or casual employees before additional hours were offered to existing employees. 
The case ran for a number of weeks in the latter part of 2016 and heard evidence from over 100 witnesses.

Outcome in the Common Claims

4 Hour Minimum Claim

The Commission has rejected the ACTU’s claim for a uniform 4 hour minimum engagement period for part timers and casuals.
 
However, the Commission has reached the provisional view that the 34 modern awards (see Appendix A) which currently contain no minimum engagement clause should be varied to include a 2 hour minimum engagement period for casuals.
 
Four further Awards, Manufacturing and Associated Industries and Occupations, Vehicle Manufacturing, Repair, Services and Retail, Graphic Arts, Printing and Publishing, and Food, Beverage and Tobacco Manufacturing will now have a 3 hour minimum.
 

Prohibition on hiring before offering additional hours to existing employees Claim

The Commission found this claim to be “unsustainable for a wide range of reasons” and rejected it.

Casual Conversion Claim

The Full Bench has determined that it is necessary that all modern awards contain a provision which would allow casual employees to elect to convert to full-time or part-time employment under certain conditions.
 
While no change will be made to awards already including a casual conversion clause, for 85 awards which do not currently contain a casual conversion clause, the Full Bench proposes that a clause be inserted which would allow a casual employee the option to convert.
 
This would apply where the employee has, for at least 12 months, worked a pattern of hours which, with reasonable adjustment, could be continued in accordance with the full-time or part-time employment.
 
A conversion request could be refused where conversion would require a significant adjustment to the casual employee’s hours of work or where it was reasonably forseeable that the employee’s hours will significant change or reduce within the next 12 months.
 
Employers will be required to provide a copy of the model conversion clause to all casual employees in their first 12 months employment.

Variations in the Award Specific Claims

Hospitality Award, Registered and Licensed Clubs Award & Restaurant Awards

Claims by employer groups for more flexible part-time provisions were successful in these awards.
 
The Commission found that the current part-time provisions in the Hospitality and Clubs Awards do not provide a workable model for part-time employment in the sector - the provisions are “close to being a dead letter”.
 
The proposed variation will provide employers greater flexibility to roster part-time employees, provided work is allocated only during periods when the employee has stated they are available.
 
A provisional view was also expressed that the part-time employment provisions in the Restaurants Award should also be altered in the same way.
 
A United Voice claim for the introduction of overtime penalty rates for casuals in these Awards  was also successful with penalty rates to apply to casual employees for all time worked in excess of 12 hours in a day or 38 hours per week.

Retail, Fast Food and Hair and Beauty Awards

The Shop, Distributive and Allied Employees' Association's (SDA) claim for overtime penalty rates for casuals was successful which will mean:

In the Retail Award, casuals will be entitled to overtime penalty rates for work performed in excess of 38 per week, for work performed outside the span of hours for each day, or for hours worked by in excess of 9 hours per day, provided that one day per week a casual employee may work 11 hours without attracting overtime penalty rates.

In the Fast Food Award, a casual employee should receive overtime penalty rates for work in excess of 38 per week, and for hours worked in excess of 11 hours in a day.

In the Hair and Beauty Award, casuals will be entitled to overtime penalty rates for work performed in excess of 38 per week, and for hours worked in excess of 10½ hours in a day.

Horticulture Award

An AWU Claim to vary the Horticulture Award so casual employees receive overtime penalty rates was granted meaning that casuals working in excess of 12 hours per day or in excess of 304 hours over an 8 week period will receive overtime.
 
The Full Bench acknowledge that “the most likely response of horticultural employers to the imposition of any onerous overtime penalty rate requirement will be to try to avoid its incidence” by “reducing the working hours of their casuals to a level which did not attract any overtime payments”.

Next Steps

The Full Bench has indicated that it will provide interested parties with an opportunity to make further submissions about the proposed terms with a series of dates being set for submissions in July and August 2017.
 
Given the scope of the decision, its ramifications are likely to become clearer in the coming days.
 
Our legal partners Australian Business Lawyers and Advisors played a lead role in these proceedings on behalf of the Australian Chamber of Commerce and Industry, the New South Wales Business Chamber and Australian Business Industrial. Workplace Assured is backed by Australian State Chambers.

Please call Workplace Assured on 1300 496 955 if you wish to discuss this circular or require further information.                

Appendix A

Modern awards which provide for casual employment and currently contain no daily minimum engagement period for casual employees
 
1. Airport Employees Award 2010 [MA000049]
2. Aquaculture Industry Award 2010 [MA000114]
3. Architects Award 2010 [MA000079]
4. Banking, Finance and Insurance Award 2010 [MA000019]
5. Business Equipment Award 2010 [MA000021]
6. Cleaning Services Award 2010 [MA000022]
7. Commercial Sales Award 2010 [MA000083]
8. Corrections and Detention (Private Sector) Award 2010 [MA000110]
9. Cotton Ginning Award 2010 [MA000024]
10. Educational Services (Teachers) Award 2010 [MA000077]
11. Electrical, Electronic and Communications Contracting Award 2010 [MA000025]
12. Gas Industry Award 2010 [MA000061]
13. Higher Education Industry—Academic Staff—Award 2010 [MA000006]
14. Horticulture Award 2010 [MA000028]
15. Local Government Industry Award 2010 [MA000112]
16. Mannequins and Models Award 2010 [MA000117]
17. Marine Towage Award 2010 [MA000050]
18. Market and Social Research Award 2010 [MA000030]
19. Medical Practitioners Award 2010 [MA000031]
20. Mining Industry Award 2010 [MA000011]
21. Miscellaneous Award 2010 [MA000104]
22. Pharmaceutical Industry Award 2010 [MA000069]
23. Port Authorities Award 2010 [MA000051]
24. Professional Employees Award 2010 [MA000065]
25. Rail Industry Award 2010 [MA000015]
26. Security Services Industry Award 2010 [MA000016]
27. Silviculture Award 2010 [MA000040]
28. Sporting Organisations Award 2010 [MA000082]
29. Surveying Award 2010 [MA000066]
30. Telecommunications Services Award 2010 [MA000041]
31. Transport (Cash in Transit) Award 2010 [MA000042]
32. Vehicle Manufacturing, Repair, Services and Retail Award 2010 [MA000089]
33. Water Industry Award 2010 [MA000113]
34. Wool Storage, Sampling and Testing Award 2010 [MA000044]

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