The Fair Work Commission has this week handed down its decisions in relation to two major claims sought by the unions: the Casual and Part-time Employment Case and the Family & Domestic Violence Leave Clause.  Both decisions will have a significant impact for employers with award-covered employees so it is essential that you are aware of them.

Casual Conversion

Casual conversion clauses are not new, with many State Awards having contained casual conversion clauses.  However, with the commencement of Modern Awards on 1 January 2010 the majority of those casual conversion clauses were lost as they were not included in all Modern Awards.  Consequently, and as part of the 4 Yearly Review of Modern Awards, unions sought to have a casual conversion clause inserted into all Modern Awards. 

Specifically, unions sought an absolute right for casual employees to be converted to permanent employment after six months of regular work, and a standard four-hour minimum engagement period for casual and part-time employees.

After more than 2 years of argument before the Fair Work Commission, this week the Commission ruled that Modern Awards should enable casual employees to elect to convert to full-time or part-time employment but that this should be subject to certain rules and restrictions. The Commission’s rationale is that some employers indefinitely engage persons as casuals who may be, and who may want to be, employed permanently.

In particular, the Commission has drafted a model clause to be inserted into those Modern Awards that do not currently provide for casual conversion, which specifies that casual employees who work regular hours for a qualifying period of 12 months have the right to apply for permanent employment.

However, employers may refuse such requests on the grounds that:

• It would require a significant adjustment to the casual employee’s hours of work to accommodate them in full-time or part-time employment; or
• It is known or reasonably foreseeable that the casual employee’s position will cease to exist; or
• The casual employee’s hours will significantly change or be reduced within the next 12 months; or
• It is reasonable in the circumstances based on facts which are known or reasonably foreseeable.

The model clause also provides that employers must give all casual employees a copy of the casual conversion clause within 12 months of their engagement.

The Commission rejected the unions’ claim for a four-hour minimum engagement period for casuals. Instead, it has decided that for those Modern Awards that do not currently have any minimum engagement period, a minimum engagement period for casuals of  two-hours should be included.
 

Family and Domestic Violence Leave Clause

The Commission has also recently delivered a decision that Modern Award covered employees should have access to unpaid family and domestic violence leave.

As part of the 4 Yearly Review of Modern Awards, unions were seeking the insertion of 10 days paid family and domestic violence leave into all modern awards which would apply to permanent and casual employees equally.

Former Vice President Graeme Watson handed down his decision earlier this year before his retirement, rejecting the unions’ claim.  However, the two remaining members of the Bench had not been able to issue their decision until this week due to a dispute over the constitution of that Full Bench.

The two remaining members of that Full Bench have now delivered their decision that the unions’ claim for Modern Awards to include a right to 10 days a year of paid family and domestic violence leave should be rejected. However, the Bench majority held that a workplace response is needed to tackle the significant community issue of family and domestic violence and that the modern awards currently do not adequately deal with the issue. 

Accordingly, the majority decision formed the preliminary view that employees covered by Modern Awards should have access to unpaid family and domestic leave. It has also held that employees experiencing family or domestic violence should be able to access personal/carer’s leave in a wider range of circumstances.  Further submissions and evidence on the preliminary view of the majority decision will be held in the near future.

For further information on either case, Modern Awards or strategies on how to manage your workforce please don't hesitate to get in contact with Holman Webb's Workplace Relations team today.