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HTOW LAW CHANGES AFFECT CASUAL EMPLOYMENT he Fair Work Amendment Consequently, in applying the hours of work are required to be (Supporting Australia’s Jobs foregoing, the principal basis for performed; and/or and Economic Recovery) Act determining an employee’s status will b. The times at which the employee’s 2021 was passed on 22 March, now be in accordance with the initial hours of work are required to amending the Fair Work Act 2009 and offer and acceptance, and not the be performed, which cannot be significantly changing the handling of casual employment both for employers and employees. The key changes that the Amendment Act incorporate are a formal definition of ‘casual employee’ and clarification on the obligations and rights of employers and employees in relation to offering permanent part-time or full-time roles if specific criteria are met. As a proprietor pharmacist, it’s crucial that you have a good understanding of the changes and how they’ll impact you and your employees. These changes came into effect on Saturday 27 March. Definition of casual employee According to the definition of ‘casual employee’ in the new legislation, an employee is a casual employee if: • The offer of employment made by the employer to the potential employee is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the potential employee. • The potential employee accepts the offer on the above basis. • The potential employee becomes an employee as a result of this acceptance. The legislation clarifies that the first requirement above – ‘no firm advance commitment to continuing and indefinite work according to an agreed pattern of work’ – can be satisfied only if the following have been considered: • Whether the employer can elect to offer work and whether the potential employee can elect to accept or reject work. • Whether the potential employee will work as required according to the needs of the employer. • Whether the employment is described as casual employment. • Whether the potential employee will be entitled to a casual loading or specific rate of pay for casual employees under the terms of the offer or a fair work instrument. subsequent conduct of the parties. Casual conversion The Amendment Act provides a new entitlement to the National Employment Standards and will require you, as an employer, to offer permanent part-time or full-time employment to your casual employees if specific criteria are met. The requirements for an employer to be obliged to offer permanent employment to a casual employee are: • The casual employee has been employed by the employer for a period of 12 months. • During at least the last six months of the above period, the casual employee has worked a regular pattern of hours on an ongoing basis that, without significant adjustment, the casual employee could continue to work as a full-time employee or a part-time employee (as the case may be). If the above criteria are satisfied, the legislation also provides the specific method for how employers must offer permanent employment to their casual employees. Unless there are reasonable grounds for deciding not to make an offer, the offer must be: • In writing. • For a full-time or part-time role in accordance with the hours worked in the six-month period described above. • Given to the casual employee within 21 days after the end of the 12-month period of casual employment. The legislation details what may be considered as reasonable grounds for not offering permanent employment to casual employees despite the above criteria being satisfied. These include the following: • The employee’s position will cease to exist in the period of 12 months after the time of deciding not to make the offer. • The hours of work that the employee is required to perform will be significantly reduced in that 12-month period. • There will be a significant change in: a. The days on which the employee’s accommodated by the casual employee due to their availability. • Making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a state or territory. Employees are similarly entitled to request a conversion to permanent employment from their employers if they satisfy the above criteria, which employers may reject only if there are reasonable grounds, as detailed above, to do so. The entitlement to casual conversation contained in the Amendment Act differs slightly from those already included in the Pharmacy Industry Award 2020. The Amendment Act doesn’t apply to small-business employers, but award- covered employees will still have a right to causal conversion in accordance with the applicable provision under the award. Casual employment statement The Amendment Act also requires all employers to provide a copy of the Casual Employment Information Statement (CEIS) to all casuals before, or as soon as possible after, they start their new job. If you’re a small-business employer, you must provide all existing casual employees a copy of the CEIS as soon as possible after 27 March 2021 (and all other employers as soon as possible after 27 September 2021). Disclaimer: The content of this article is general in nature and for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication. BUSINESS THROUGH INNOVATION LEGAL 27 By Sam Saad. Principal, Clinch Long Woodbridge Lawyers Sam Saad is Principal at Clinch Long Woodbridge Lawyers, a Sydney-based law firm with a focus on pharmacy. Inquiries: ssaad@clw.com.au or 02 9279 4888. RETAIL PHARMACY • JUN 2021