Should we keep it casual? – Practical advice for employers

In the March 2025 edition of the BAL Lawyers HR Breakfast Club forum, Special Counsel Bill Pardy from the Employment Law & Investigations team led an engaging and informative session for HR professionals on the recent changes to the process for requesting conversion of casual employment to permanent employment.

Bill provided key insights into:

• The new casual employment conversion process,  
• Determining the eligibility of employees to request conversion,
• Meeting the employer’s obligations in responding to a request for conversion, and,
• Specific considerations for employers in making a decision to accept or reject a request.

Operation and Rationale for the Changes

Coupled with the 26 August 2024 changes to the definition of casual employment, the Fair Work Act (FWA) was amended to allow eligible casual employees to request a change to permanent employment. For most businesses, the changes under the FWA came into effect on 26 February 2025, but for small businesses (as defined in the FWA) they will come into effect from 26 August 2025.

As outlined in section 66AAA of the FWA, this change was intended to establish a quick, flexible and informal method to raise requests for conversion, to respond to those requests and to resolve any disputes about employment status in the Fair Work Commission (FWC).

Eligibility

Under the new ‘employee choice’ pathway, a casual employee can give written notice to their employer requesting to convert to permanent employment if:

• They have been employed for at least 6 months (or at least 12 months for small business employers); and
• They believe they no longer meet the requirements of the (new) casual employee definition under section 15A of the FWA; and
• They are not currently in a dispute with their employer regarding casual conversion; and
• In the previous 6 months, they have not had a prior request for casual conversion rejected by their employer.

Obligations in Responding

Bill gave practical advice surrounding an employer’s obligations in responding to an employee’s request for conversion. Generally, an employer must consult with the employee regarding the request, and ensure a written response is provided within 21 days.

An employer should also consider:

• If any applicable Award or EA has relevant provisions on conversion.
• Any specific terms or details of the consultation with the employee which are required or appropriate.
• Any changes to the employee’s hours of work or pattern of employment that have occurred during the previous six months.

If a request for conversion is accepted, in the written notice, the employer must identify:

• The employee’s new status (i.e. whether a full-time or part-time employee); and
• The employee’s regular hours of work after the change takes place; and
• When the new permanent employment will begin.

If rejecting a request for conversion, an employer must include in the written notice the reasons for the decision, which may be legal, technical or operational.

Under legal or technical reasons, an employer may refuse the conversion for reasons including:

• The employee still meets the definition of a casual employee under section 15A of the FWA; or
• Accepting the change would mean the employer would not comply with a recruitment or selection process required by Commonwealth, State or Territory laws.

For operational reasons, section 66AAC(5) of the FWA permits an employer to refuse a request for casual conversion if there are ‘fair and reasonable’ grounds for not accepting the request.

Some of the key considerations for employers in relation to operational reasons were discussed, including:

• Whether granting the request would require substantial changes to employment terms and conditions; or
• Whether granting the request would require the employee to develop new skills, take increased responsibility, or create significant adjustments to the employee’s duties or hours of work.
• Whether granting the request would create significant operational impacts for the business, including:
  • Changes due to public safety, regulatory or WHS requirements; or
  • Structural or technological changes; or
  • Changes in deployment, service delivery or methods of operation.

Disputes and Other Matters

It was noted that a dispute can be referred to the FWC by either an employer or an employee. Bill outlined the process that follows if a dispute about casual conversion is referred, including the FWC’s powers to determine if an employee remains a casual or is converted to a permanent employee.

To ensure that employers understand their obligations to casual employees, Bill also highlighted requirements including the regular provision of Fair Work Information Statements and Casual Employment Information Statements.

Closing Remarks

This session demonstrated the changes to the casual employment conversion process. Bill provided practical guidance for employers to ensure that they are prepared to meet the changes.

If you are an HR professional and would like to attend our future HR Breakfast Club forums, please visit our monthly forum page and register to attend.

If you have any questions or queries about the information in this summary, or if you are experiencing any issues and need advice, please contact the BAL Lawyers Employment & Investigations team on 02 6274 0999.