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Regular casual employees gain right to convert to permanent

Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 100, 21 March 2006

The NSW IRC has handed down its decision in the “Secure Employment” case. The decision provides for a standard clause, which can be inserted into NSW awards, providing for the conversion to permanency of casual employees and for specified OHS responsibilities of host employers toward employees of contractors or labour hire companies. The decision potentially affects most private sector state awards in NSW.

A casual employee engaged on a regular and systematic basis for 6 months can elect to be become permanent if the employment is continuing:

• The employer must give the employee written notice of this right within 4 weeks of the 6 month period expiring. Failure to do so is an offence and does not remove the right. The employee must reply in writing within 4 weeks or is regarded as not wishing to convert.
• The employer cannot unreasonably refuse the employee’s election and must give the employee reasons for refusal.
• The conversion should give the casual employee the same hours they had as a casual unless there is agreement for different hours.
• A labour hire casual has the same rights to elect for permanency with their labour hire company.

In terms of OHS, a host employer must directly, or through the labour hire company or the contractor:

• consult with the labour hire or contractor employees about site consultative arrangements;
• provide safety induction training and job training;
• provide appropriate personal protective equipment; and
• ensure the labour hire or contractor employees are made aware of site risks and procedures to control them.

These obligations do not remove the responsibility of the labour hire company or contractor for the health and safety of their employees.

Significantly, the Commission refused to grant the restrictions on labour hire and contracting out sought by Unions NSW and the removal of limits on part time employment sought by Employers First.

HR Tips

After an award is varied, and there are casuals who have been engaged on a regular and systematic basic for 6 months, an employer has 4 weeks to advise the regular casual of their right to elect permanency. Employers should monitor any changes in the NSW awards that apply to their workforce.

Take steps to ensure that employees of contractors or labour hire companies have received appropriate site induction and job specific training, have the proper equipment for the work they are doing and are aware of site OHS consultation arrangements.

Richard Taylor
Senior Associate
Australian Business Lawyers