Sisters In Law: Can you go from a casual worker to being made permanent?

After five years as a casual worker, one Queensland man is tired of missing out on money – but his boss is reluctant to put him on a contract.

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn advise on how to go from a casual employee to being made permanent.

Question:

I’m a tradie who’s been working for the same company as a casual for almost five years. My boss says I’m “better off” on a casual rate as it’s more per hour than I’d get on a contract. However, I don’t get holiday pay, sick pay or pay for when work is rained off or slow. I’ve asked to go on a contract but he seems reluctant.

Am I losing out on rights because I’m a casual and is there any way of making him take me on as a permanent member of staff? – Dan, Qld

Dan loses money and work when it rains as he’s a casual. Picture: iStock

Answer:

Dan, being a casual employee doesn’t mean you don’t have employment rights, including the right to decent wages and entitlements. You have done the right thing in reaching out to understand where you stand.

The National Employment Standards outline the minimum entitlements for employees in Australia and this includes a process that should be followed to convert from a casual employee to a permanent employee.

You meet the first requirement, that is, having been employed by your employer for more than 12 months.

Your employer’s obligations to make you permanent will depend on whether they are classified as a small business.

If the business you work for has fewer than 15 staff than there is no obligation to make you permanent. Picture: iStock

For employers that have fewer than 15 employees (including casuals if they work on a regular and systematic basis) there is no obligation to convert casual employees to permanent.

That said, if your employer is a small business, you can make the request. They must respond in writing within 21 days and if they refuse they must let you know the reasons why.

They can’t refuse without having first consulted you and also having reasonable grounds to refuse a request.

Your boss’s rationale that you would be “better off” as casual is not a reasonable ground for refusal.

A reasonable ground for not converting your employment to permanent could be that your position won’t exist within the next 12 months or your hours of work will significantly reduce within that time.

If your employer has 15 or more employees you could have a stronger leg to stand on. In fact, your employer has a positive obligation to consider the conversion of your employment.

Changes to the law mean employers must provide written notice as to whether or not you are entitled to convert to permanent by 27 September this year. Picture: iStock

Thanks to changes made to the Fair Work Act this year, your employer will need to give you (and all casual employees employed before March 27, 2021) written notice as to whether or not you are entitled to convert to permanent by September 27 this year.

To be eligible to receive this written notice, in addition to needing to be employed for greater than 12 months, your hours over at least the past six months would need to have been regular and at a level whereby you could continue them as either a part-time or permanent employee without significant changes.

If you meet this test, your employer must offer you permanent employment unless there are reasonable grounds for not making you an offer. Some of the grounds on which they can refuse to do this are outlined above, which relate to expected changes to ongoing and regular work in the coming year.

Your right to convert your employment to permanent is protected by the law. Picture: iStock

If you are offered a permanent position you will have 21 days to respond to your employer’s offer. If you don’t respond, your employment will not be converted to permanent.

Your right to convert your employment to permanent is protected by the law. If you consider your employer is not acting appropriately and you are unable to resolve this directly with your boss, you should seek legal advice or contact the Fair Work Commission.

You may have the right to lodge an application in the Commission to resolve your dispute.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

If you have a legal question you would like Alison and Jillian to answer, please email [e-mail].

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