STATEMENT

Fair Work Act 2009
Clause 48 of Schedule 1

Casual terms award review 2021
(AM2021/54)

Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021—casual amendments—review of modern awards.

1. Background

[1] On 27 March 2021 the Fair Work Act 2009 (FW Act) was amended by the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (amending Act).

[2] In summary, the amendments:

•  introduce a definition of ‘casual employee’

•  repeal the definition of ‘long term casual employee’ and introduce a new definition of ‘regular casual employee’

•  introduce a new casual conversion National Employment Standard that:

•  requires employers, other than small business employers, to offer eligible casual employees conversion to full-time or part-time employment (subject to the employer having reasonable grounds not to do so), and

•  allows eligible casual employees (including casual employees of a small business employer) to request conversion to full-time or part-time employment

•  provide for the Fair Work Commission (Commission) to conciliate disputes about casual conversion and allow some disputes about casual conversion to be dealt with in court as small claims

•  require the Fair Work Ombudsman to produce a Casual Employment Information Statement that employers must give to their casual employees

•  provide for courts to offset any casual loading paid to an employee against claims for unpaid relevant entitlements, and

•  provide for the Commission to vary enterprise agreements and modern awards to resolve difficulties in their interaction with the new casual employee definition or casual conversion arrangements.

[3] Clause 48 of Schedule 1 to the FW Act requires the Commission to review and vary modern awards on the basis of their interaction with the new casual employee definition and casual conversion arrangements in the FW Act as amended (the Casual terms review):

48 Variations to modern awards

(1) If:

(a) a modern award is made before commencement; and

(b) the modern award is in operation on commencement; and

(c) immediately before commencement, the modern award includes a term (the relevant term) that:

(i) defines or describes casual employment; or

(ii) deals with the circumstances in which employees are to be employed as casual employees; or

(iii) provides for the manner in which casual employees are to be employed; or

(iv) provides for the conversion of casual employment to another type of employment;

then the FWC must, within 6 months after commencement, review the relevant term in accordance with subclause (2).

(2) The review must consider the following:

(a) whether the relevant term is consistent with this Act as amended by Schedule 1 to the amending Act;

(b) whether there is any uncertainty or difficulty relating to the interaction between the award and the Act as so amended.

(3) If the review of a relevant term under subclause (1) finds that:

(a) the relevant term is not consistent with this Act as amended by Schedule 1 to the amending Act; or

(b) there is a difficulty or uncertainty relating to the interaction between the award and the Act as so amended;

then the FWC must make a determination varying the modern award to make the award consistent or operate effectively with the Act as so amended.

(4) The determination must be made as soon as reasonably practicable after the review is conducted.

(5) A determination under subclause (2) comes into operation on (and takes effect from) the start of the day the determination is made.

(6) Section 168 applies to a determination made under subclause (2) as if it were a determination made under Part 2-3.

[4] The Commission must complete its review of the ‘relevant terms’ in every modern award that contains such terms within the period of 6 months after commencement of the casual amendments (ie by 27 September 2021) (cl.48(1)).

[5] Where review of a relevant term finds an ‘inconsistency’ or ‘difficulty or uncertainty’ within the meaning of clause 48(2), the Commission must make a determination varying the modern award as soon as is reasonably practicable.

2. Proposed approach to the Casual terms review

[6] There are currently 121 modern awards and a further 34 state reference public sector or enterprise modern awards. Of these 155 modern awards, only 3 make no reference to ‘casual’ employment or ‘casual’ terms and conditions. 1

[7] The Casual terms review will be conducted in two stages.

[8] In the first stage of the Casual terms review a 5 member Full Bench will consider the nature and scope of the review required by clause 48 of Schedule 1 to the FW Act and will review relevant terms in a small initial group of modern awards that raise a range of possible interaction issues.

[9] The 5 member Full Bench will issue a decision on the outcome of its review of the initial group of awards and also determine the process for the second stage of the Casual terms review.

[10] In the second stage of the Casual terms review, a Full Bench of 3 members (a subset of the 5 member Full Bench) will review the remaining modern awards in convenient groupings.

2.1 First stage

[11] A discussion paper prepared by staff of the Commission will be issued shortly. The discussion paper will:

•  provide some initial commentary on the Casual terms review

•  identify relevant terms in the initial group of awards listed at [13] below and discuss the interaction between those terms and the FW Act as amended, and

•  raise questions for interested parties to consider.

[12] Some preliminary issues in relation to the scope and nature of the Casual terms review are:

•  the potential breadth of the phrase ‘relevant term’ and the requirement that the Review consider all such terms in each modern award

•  what is meant in cl.48(2) by a relevant term in an award being ‘consistent’ with the FW Act as amended and by ‘uncertainty or difficulty’ relating to the interaction between the award and the FW Act as amended

•  what is meant in cl.48(3) by making an award ‘operate effectively’ with the FW Act as amended

•  whether the Commission need give any consideration in the Casual terms review to awards that exclude casual employment

•  whether the modern awards objective in s.134 of the FW Act has any relevance to the Casual terms review, and

•  whether in the course of the Casual terms review the Commission might also exercise its modern award powers under Part 2-3 of the FW Act to make incidental amendments to some award terms.

[13] The following initial group of 6 awards will be considered in the first stage of the Casual terms review:

•  General Retail Industry Award 2020

•  Hospitality Industry (General) Award 2020

•  Manufacturing and Associated Industries and Occupations Award 2020

•  Educational Services (Teachers) Award 2020

•  Pastoral Award 2020, and

•  Fire Fighting Industry Award 2020.

[14] Issues raised by the review of this initial group of awards are likely to include:

•  whether existing award definitions of ‘casual employee’ or ‘casual employment’ should be retained in some form, or replaced with the new statutory ‘casual employee’ definition or a reference to it

•  whether award model casual conversion clauses should be retained in some form, or replaced with a reference to the new casual conversion National Employment Standard

•  whether award-specific casual conversion clauses should be retained in some form, or replaced with a reference to the new casual conversion National Employment Standard

•  what other types of ‘relevant terms’ must be considered in the Casual terms review, and

•  the implications of any award variations for existing employment arrangements and whether transitional arrangements may be needed.

2.2 Second stage

[15] After the first stage of the Casual terms review, the remaining modern awards will be divided into the groups set out in Attachment A for review by a 3 member Full Bench.

[16] For convenience, the award groupings are broadly based on the award stage groups from the 4 yearly review of modern awards. Due to the short timeframe for completion of the Casual terms review, 2 of the 4 yearly review groups of awards have been consolidated. The order in which the groups are to be considered has also been reversed, so that group 4 from the 4 yearly review will be considered first.

[17] Directions for the second stage of the Casual terms review will be issued in due course.

3. Next Steps

[18] Directions for lodging submissions in relation to the first stage of the Casual terms review will be issued with the discussion paper.

[19] A conference will be listed at 9:30am on Thursday 15 April 2021 to discuss the proposed process for conducting the Casual terms review. A listing notice and agenda will be published shortly.

[20] The Commission has established a dedicated Major Cases webpage for this matter.

[21] The Commission’s award subscription service will be used to notify interested parties of updates during this matter such as deadlines for the filing of submissions, notices of listing and when any decisions or statements are issued. A dedicated subscription service called ‘Casual terms award review 2021’ has been established. Interested parties are encouraged to subscribe to receive notifications on the subscription services page on our website. Any questions about the subscription service can be sent to amod@fwc.gov.au.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Attachment A
Group 1

Group 2

Group 3

Group 4–State Reference Public Sector and Enterprise Modern Awards

 1   The Fire Fighting Industry Award 2020, Maritime Offshore Oil and Gas Award 2020 and Seagoing Industry Award 2020 make no reference to ‘casual’ employment or to ‘casual’ terms and conditions. The Australian Nuclear Science and Technology Organisation (ANSTO) Enterprise Award 2016 does not provide for ‘casual’ employment but contains some references to ‘casual’ terms and conditions. The Australian Public Service Enterprise Award 2015 and Parliamentary Departments Staff Enterprise Award 2016 provide for ‘irregular or intermittent’ employment, which attracts a ‘casual’ loading.