Casual terms award under review

Public news

A five-member FWC full bench led by President Iain Ross has largely confirmed its provisional views on casual terms in modern awards.

After considering the casual provisions in the six "stage one" awards (which includes the Manufacturing and Associated Industries and Occupations Award 2020) they chose as vehicles for the case, Justice Ross, Vice Presidents Adam Hatcher and Joe Catanzariti, Deputy President Michael Easton and Commissioner Michelle Bissett ruled on the changes necessary to comply with the Omnibus Bill's changes to regulation of casual work the Fair Work Act.

The Act's new s15A defines a "casual employee" as one who accepts a job offer from an employer knowing there is no firm advance commitment to continuing work with an agreed pattern, and NES casual conversion arrangements in Part 2-2 Division 4A.

The amendment says casual status is "assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party".

The bench:

  • held to its view that the "engaged as a casual" definition is inconsistent with new the new Fair Work Act definition;
  • maintained its view that "paid by the hour definitions are also inconsistent with s15A; and
  • backed its tentative view that "residual category" definitions, such as those in the retail and pastoral awards, might not be "directly inconsistent", but such definitions "should give rise to relevant interaction difficulties or uncertainty because of differently expressed casuals definitions in s15A and in the awards".

It accepted the ACTU's position that that casual terms are not 'inconsistent with' the revised Act "merely because they differ from the newly enacted provisions".

The bench also held to the view that replacing existing definitions in awards with the definition in s15A or referring to s15A would make the award consistent with the amended Act.

It said it would follow that course with the retail, hospitality, manufacturing, teachers and pastoral awards and that the variations would take effect form September 27.

The bench also confirmed its tentative view that award terms that require employers to tell employees on engagement the basis on which employed are inconsistent with s15A, but "on further reflection" shifted from its provisional view that rather than removing terms such as that in the manufacturing award, which require the employer to inform workers of their likely hours, it should vary them.

It indicated that such variations would have "little utility" and it would be better to delete the terms.

The bench also endorsed its provisional view that it should not vary awards to specify the entitlements for which casual loading compensates.

It further held to its provisional view that the model award casual conversion clause is less beneficial than the NES casual conversion entitlements.

It stuck by its provisional view that it should remove the model clause from awards and replace it with a reference to the NES provisions.

It also adhered to one of the approaches it took in its provisional views on the casual conversion clauses in the manufacturing award, saying it would remove them and replace them with references to the NES casual conversion entitlements.

It took a similar approach with the conversion clause in the hospitality award.

The bench will now issue draft determinations to vary the six test case awards to reflect Friday's ruling and this will provide the template for changes to the remaining 150 modern awards in "stage two".

The review of the awards must be finalised by the statutory deadline of September 27.

The MTA will continue to update members on changes to the modern awards most commonly utilised by those in our industry.

If members need assistance with modern awards, please contact the WR team on wr@mtasant.com.au, or on 8291 2000.