Amendments to modern awards: casual conversions and workforce reviews

Articles Written by Lucienne Mummé (Partner)

The Full Bench of the Fair Work Commission recently determined to make a number of amendments to modern awards relating to casual and part-time employees.


 The changes to the modern awards are as follows:

  • 85 modern awards will be amended to provide for a process for casual employees to seek conversion of their employment to permanent full-time or part-time employment. Applications to amend the 17 modern awards already containing a casual conversion clause was rejected, and 3 other awards were found not to be suitable for a casual conversion clause given the nature of the work covered.
  • Modern awards that do not already specify a minimum engagement period for casual employees will be amended to provide for a 2 hour minimum engagement period, and the Manufacturing and Associated Industries and Occupations Award 2010, the Vehicle Manufacturing, Repair, Services and Retail Award 2010, the Graphic Arts, Printing and Publishing Award 2010, and the Food, Beverage and Tobacco Manufacturing Award 2010 will be amended to provide for a 3 hour minimum engagement period for casuals.
  • The Hospitality Industry (General) Award 2010Restaurant Industry Award 2010Registered and Licensed Clubs Award 2010General Retail Industry Award 2010Fast Food Industry Award 2010Hair and Beauty Industry Award 2010Horticulture Award 2010 will be amended to provide for overtime to be paid to casual employees who work in excess of:
    • 12 hours in a day (or 11.5 hours per day in the case of the Hair and Beauty Industry Award 2010); or
    • 38 hours in a week, or an average of 152 hours in a 4-week roster cycle, or an average of 304 hours in an 8-week roster cycle in the case of the Horticulture Award 2010.
  • The Hospitality Industry (General) Award 2010 and the Registered and Licensed Clubs Award 2010 will be amended to provide more certainty regarding engagement of part-time employees, specifically, that a part-time employee must have an agreed minimum 8 hours work per week in order to be a part-time employee, there must be an agreement for guaranteed weekly hours and availability on agreed days within an agreed span of hours, any change to guaranteed hours must be by written consent of the employee, and the ability to agree to increase the guaranteed hours where the employee consistently works more than the guaranteed hours of work in a 12-month period. These amendments are also likely to be included in the Restaurant Industry Award 2010.
  • The Road Transport (Long Distance Operations) Award 2010 will be amended to include the ability to employ part-time employees.
  • The Rail Industry Award 2010 will be amended to clarify the interaction between the casual loading and the various allowances required to be paid under the award.

Changes sought to the part-time employment provision in the Social, Community, Home Care and Disability Services Industry Award 2010 to enable an employer and employee to agree not to fix the employee’s hours if the employee was engaged in individualised client services under the NDIS were rejected. This was in part because the award currently enables employers and employees to agree to work different numbers of hours in different weeks, or at particular times of the year and there was no evidence of significant difficulty in getting an agreement.

Casual conversions

The new casual conversion clause for modern awards will provide that:

  • regular casual employees may request to have their employment converted to permanent full-time or regular part-time employment if, over a 12 month period, they have worked a pattern of hours on an ongoing basis that could, without significant adjustment, continue to be performed in accordance with the full-time or part-time employment provisions of the relevant award;
  • a regular casual employee who has worked in the 12 months casual employment an average of 38 or more hours a week may request conversion to full-time employment, or part-time employment where the average is less than 38 hours per week.
  • employers must notify all casual employees of their right to seek conversion of their employment to permanent employment within 12 months of their first engagement;
  • the employee’s request for conversion must be in writing;
  • provided that the employer has first consulted with the employee, employers may reasonably refuse to convert the employment of a casual employee to permanent employment where conversion:
    • would require a significant adjustment to the casual employee’s hours of work to accommodate them in full-time or part-time employment under the terms of the applicable modern award; or
    • it is known or reasonably foreseeable that the casual employee’s position will cease to exist or the employee’s hours of work will significantly change or be reduced within the next 12 months.

In order for any refusal of a conversion request to be reasonable, the refusal must be based on facts which are known or reasonably foreseeable, and not based on speculation or some general lack of certainty about the employee’s future employment. The consultation with the employee about the conversion request is to discuss the employee’s circumstances, the circumstances of the business and whether the existing arrangements can be accommodated under the part-time or full-time provisions in the award. Where the employee’s existing casual work pattern i.e. the days and hours can be accommodated under the part-time hours in the award, it is unlikely an employer will have “reasonable grounds” to refuse the conversion. However, if for example in the award there are restrictions on when part-time hours can be worked that would restrict the hours, times or days the casual has been working, then the employer may have reasonable grounds to reject the conversion request. Similarly, if there are operational changes that mean the employee’s pattern of hours or number of hours is likely to change or reduce, this will be a reasonable ground for refusal. The refusal and the reasons for it must be communicated to the employee in writing within 21 days of the request being made. If the employee does not accept the employer’s reasons for refusal, this will constitute a dispute that can be dealt with under the relevant award’s dispute resolution procedure.


Employers whose casual employees are covered by one of the 85 modern awards to be amended must notify those casual employees within 12 months of their employment commencing that they are entitled to request to have their employment converted from casual employment to part-time of full-time employment. Notably, this includes awards applying in industries that have traditionally employed large numbers of casual employees, including the Amusement, Events and Recreation Award 2010Fast Food Industry Award 2010General Retail Industry Award 2010Restaurant Industry Award 2010, and Social, Community, Home Care and Disability Services Industry Award 2010. A full list of those awards that will be varied to include the model clause is available here.


The Full Bench has invited further submissions on the draft casual conversion clause by 2 August 2017. If any party requests a hearing in order to give oral submissions to supplement a written submission, this will be arranged. The further decision by the Full Bench on the final form of the award variation is also likely to address the need to notify existing casual employees who have been systematically engaged for more than 12 months. 

What this means for employers

Clients should seek specific advice about the effect of any award variation on their operations including, for example, whether any enterprise agreement in place incorporates a modern award and/or “more beneficial” award variations.

Employers who engage casual employees in the affected industries should review their workforce to determine where there are employees for whom working hours are reasonably consistent and predictable to determine the feasibility of converting those employees to part-time or full-time employment in order to prepare to respond to any requests for casual conversion. However, the prospect of a large number of employees seeking casual conversion may not be significant in certain industries due to the nature of the workforce, particularly where the benefits of the increased rate of pay for casual employment outweigh the benefits of permanent employment and paid leave benefits. This is likely to be so in traditionally low paid industries reliant on limited government funding, such as social and community care, and industries that are highly populated by students who are not seeking long-term employment, such as hospitality and fast food. However, even within those industries, there is likely to be a segment of the workforce that may still consider the prospect of permanent employment to be attractive.

Employers will also need to review rostering practices to ensure that the proposed amendments to provide minimum engagements for casual employees, and for part-time employees in the hospitality, clubs and restaurants industries, are able to be accommodated.

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