Proposed industrial relations reforms to change casual work

Following months of round-table reform discussions with businesses and unions alike, the Federal Government will, in the final sitting week of 2020, introduce an overhaul of industrial relations laws in the wake of the coronavirus pandemic and the Federal Court decision in Workpac Pty Ltd v Rossato [2020] FCAFC 84 ('Rossato Decision').

Earlier this year, the Rossato Decision confirmed that, in accordance with Workpac v Skene [2018] FCAFC 131, the essence of a "casual worker" is the lack of any mutual firm advance commitment. The Rossato Decision also importantly held that employers cannot set off the casual loading they paid against a claim for unpaid annual and personal leave.

You can read more about the decision here.

‍What are the proposed changes?

The proposed amendments to the Fair Work Act 2009 (Cth) will include:

1. adding a statutory definition of 'casual work' as employment that is 'offered' without any "firm advance commitment" of continuing work;
2. extending the current casual conversion arrangements in modern awards to all workers - these require employers to offer casual workers a permanent role if they have worked regular and systematic hours over their first 12 months;
3. allowing employers to set off of casual loading against a claim for unpaid annual and personal leave, reversing the effect of the Rossato Decision;
4. adding in the option to pay an 'all-in' loaded rate for some award covered employees;
5. adding in the option to 'flex up' the hours of award covered part-time employees without the paying of overtime rates; and

The proposed changes will also impact enterprise bargaining, simplification of awards, enforcement and greenfield project developments. Whether the changes will attract bi-partisan support is yet to be seen, however that seems unlikely.

Parliament is set to vote on the legislation in early 2021.

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