DECISION

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Part-time and Casual Employment
(AM2014/196 and AM2014/197)

4 yearly review of modern awards - common issue - part time employment and casual employment - Timber Industry Award 2010 variation re: casual conversion.

[1] On 5 July 2017 the principal decision concerning part time and casual employment in modern awards arising out of the 4 yearly review of all modern awards conducted under s 156 of the Fair Work Act 2009 was issued. 1 The Full Bench determined that a casual conversion clause was an appropriate provision to insert into 85 identified modern awards which did not at that time contain a clause of that nature. This included awards subject to the Australian Council of Trade Unions’ (ACTU) application in the proceedings, with the exception of awards which already contained a casual conversion clause.2 This was stated by the Full Bench to be because no case had been put by the ACTU as to why the existing casual conversion provisions in the awards should be replaced. Parties were given an opportunity to provide any further written submissions regarding the Full Bench’s provisional view on the form of the model casual conversion clause by 2 August 2017.3

[2] On 9 August 2018 the Full Bench, after considering submissions received from interested parties, determined the final wording for the casual conversion clause to be inserted into relevant awards. 4 The Full Bench also confirmed that awards already containing a casual conversion clause would not be subject to any variation.5

[3] On 20 September 2018, the Construction, Forestry, Maritime, Mining and Energy Union Manufacturing Division (CFMMEU) wrote to the Commission submitting that the Timber Industry Award 2010 (Timber Award) had been excluded from the Full Bench’s list of awards to be varied to contain the new model casual conversion clause on the incorrect premise that it already contained a casual conversion clause. The CFMMEU pointed out that while the Timber Award contained a casual conversion clause at 12.3, the clause is limited in its application to the “Wood and Timber Furniture Stream” which covers only those classifications referred to in Schedule C - Classification Structure and Definitions for the Wood and Timber Furniture Stream, whereas the Timber Award classification structure also encompasses the General Timber and Pulp Stream and Paper Stream at Schedules B and D respectively. As such only employees covered under the Wood and Furniture Stream have a right under the Award to request casual conversion. The CFMMEU submitted that a casual conversion clause in accordance with the Full Bench decision of 5 July 2017 should apply to all employees engaged under the Award.

[4] We overlooked dealing with the CFMMEU’s correspondence in our decision of 2 April 2019, 6 so it will be dealt with in this decision.

[5] The insertion of a model casual conversion clause into modern awards was considered by the Full Bench to be appropriate in order to provide casual employees meeting specified criteria with access to the National Employment Standards which are not otherwise applicable to casual employees. 7 It is clear that awards excluded from the insertion of a casual conversion clause on the basis that they already contained a casual conversion provision were omitted on the assumption that the existing casual conversion clause in the award applied to all casual employees. In this case our provisional view is that the intention of the Full Bench’s 5 July 2017 decision would not be given its full and proper effect without the Timber Award being amended to provide that the right to request casual conversion applies to all eligible casual classifications under the Timber Award, and that the Timber Award should be amended accordingly.

[6] As it may not be appropriate to have differing casual conversion clauses in the Timber Award, our provisional view is that the existing clause applicable only to the Wood and Timber Furniture Stream should be deleted and the model clause applying to all casual employees inserted in its place.

[7] It is proposed that the Timber Award be amended by deleting clause 12.3 and inserting a new clause 12.3 as follows:

12.3 Right to request casual conversion

(a) A person engaged by a particular employer as a regular casual employee may request that their employment be converted to full-time or part-time employment.

(b) A regular casual employee is a casual employee who has in the preceding period of 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee or part-time employee under the provisions of this award.

(c) A regular casual employee who has worked equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to full-time employment.

(d) A regular casual employee who has worked less than equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to part-time employment consistent with the pattern of hours previously worked.

(e) Any request under this subclause must be in writing and provided to the employer.

(f) Where a regular casual employee seeks to convert to full-time or part-time employment, the employer may agree to or refuse the request, but the request may only be refused on reasonable grounds and after there has been consultation with the employee.

(g) Reasonable grounds for refusal include that:

(i) it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time or part-time employee in accordance with the provisions of this award – that is, the casual employee is not truly a regular casual employee as defined in paragraph (b);

(ii) it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;

(iii) it is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months; or

(iv) it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.

(h) For any ground of refusal to be reasonable, it must be based on facts which are known or reasonably foreseeable.

(i) Where the employer refuses a regular casual employee’s request to convert, the employer must provide the casual employee with the employer’s reasons for refusal in writing within 21 days of the request being made. If the employee does not accept the employer’s refusal, this will constitute a dispute that will be dealt with under the dispute resolution procedure in clause 10. Under that procedure, the employee or the employer may refer the matter to the Fair Work Commission if the dispute cannot be resolved at the workplace level.

(j) Where it is agreed that a casual employee will have their employment converted to full-time or part-time employment as provided for in this clause, the employer and employee must discuss and record in writing:

(i) the form of employment to which the employee will convert – that is, full-time or part-time employment; and

(ii) if it is agreed that the employee will become a part-time employee, the employee’s hours of work fixed in accordance with clause 12.4.

(k) The conversion will take effect from the start of the next pay cycle following such agreement being reached unless otherwise agreed.

(l) Once a casual employee has converted to full-time or part-time employment, the employee may only revert to casual employment with the written agreement of the employer.

(m) A casual employee must not be engaged and re-engaged (which includes a refusal to re-engage), or have their hours reduced or varied, in order to avoid any right or obligation under this clause.

(n) Nothing in this clause obliges a regular casual employee to convert to full-time or part-time employment, nor permits an employer to require a regular casual employee to so convert.

(o) Nothing in this clause requires an employer to increase the hours of a regular casual employee seeking conversion to full-time or part-time employment.

(p) An employer must provide a casual employee, whether a regular casual employee or not, with a copy of the provisions of this subclause within the first 12 months of the employee’s first engagement to perform work. In respect of casual employees already employed as at 20 May 2019, an employer must provide such employees with a copy of the provisions of this subclause by 20 August 2019.

(q) A casual employee’s right to request to convert is not affected if the employer fails to comply with the notice requirements in paragraph (p).

[8] Any party wishing to make a submission in respect of the proposed amendment to the Timber Award should do so within 21 days of this decision. If no submissions are received opposing the variation, a determination giving effect to the variation will then be made.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR707967>

 1   [2017] FWCFB 3541, 269 IR 125

 2   Ibid at [368]

 3   Ibid at [902]

 4   [2018] FWCFB 4695; 14 awards were subject to a modified version of the model casual conversion clause.

 5   Ibid at [35]. Of the 122 modern awards, 28 already contained a casual conversion clause: [2017] FWCFB 3541 at [345]

 6   [2019] FWCFB 2108

 7   [2017] FWCFB 3541 at [365]