The Morrison Government’s heavily amended industrial relations reform bill passed through Parliament last Monday (March 22), delivering much-needed certainty around casual employment for both employers and employees.

The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021 made important amendments to the Fair Work Act’s treatment of casual employment, summarised as:

• A new definition of a ‘casual employee’ that is clear and prescriptive;
• Protection against ‘double dipping’ claims (retrospective claims for back-paid leave entitlements on top of casual loading);
• New rights for casuals to request conversion after 12 months of regular employment.

Disputes about casual conversion can be resolved by the Federal Court in a process similar to small claims disputes, whilst businesses with less than 15 employees are exempted from the requirement to actively offer conversion – although employees can still request conversion at their initiative.

The Fair Work Ombudsman has issued a new Casual Employment Information Statement on new employer responsibilities (see details here).

The casual employment amendments were passed through Parliament with the support of One Nation senators Pauline Hanson and Malcolm Roberts, and Centre Alliance senator Sterling Griff.

Other areas of industrial relations reform included in the Government’s original “IR Omnibus Bill” – relating to enterprise bargaining, greenfields (major project) agreements and Awards flexibilities – failed to secure the numbers to pass the Senate.

In response, the Government also withdrew the part of the Bill which would have imposed significant new penalties on employers found to have engaged in wages underpayments.

Casual employment reforms critical – AREEA boss

Speaking publicly following passage of the legislation, AREEA Chief Executive Steve Knott AM explained the importance of the casual employment amendments to not only resources and energy employer, but the whole economy.

“As introduced the government’s IR reform bill contained a number of measures that would have significantly assisted the national economic recovery,” Mr Knott said.

“While other measures in the Bill – including 21-day enterprise agreement approvals, certainty for major project investors and simplification of small business awards – were critical, most business representatives agreed that fixing the mess around casual employment was the most important and pressing priority.

“The new casual definition and conversion rights are important to give employers and employees certainty around casual employment moving forward. The bill ensures the uncertainty that has pervaded casual employment in recent years is dealt with at a time when employers need to be encouraged to bring-on new employees.

“The casual loading offset provisions were even more critical in that they dealt with an imminent threat to the survival of hundreds, potentially thousands of Australian businesses and the jobs they sustain.

“It’s a measured and fair response to the Federal Court’s absurd findings that the law, as it then stood, would allow employees to ‘double dip’ on both casual loading and back-paid leave entitlements.

“By resolving this contentious area of employment regulation Australian employers can have the confidence to get on with rebuilding the economy and creating jobs.”

Government urged to revisit broader IR reforms

While the casual employment reforms were very welcome, the business community was widely disappointed that other parts of the Government’s original IR Reform Bill, deemed critical to stimulating jobs and investment during the economic recovery, failed to secure majority support in the Senate.

Most notably for AREEA members, this included improvements to enterprise agreement making processes and extended terms for greenfields agreements to cover the full construction phase of new major resources and energy projects.

Both these areas are longstanding reform priorities for AREEA and its primary IR policy committee, the Board Reference Group.

AREEA was heavily involved in the Government’s IR Working Groups regarding these two areas of the Act and had been working extensively in early 2021 to build support in the Senate for the changes.

In collaboration with other leading business groups, AREEA has now turned its attention to ensuring the Government does not abandon these other parts of its IR Reform Bill.

A statement released jointly by AREEA with the Australian Chamber of Commerce and Industry, Australian Industry Group, Business Council of Australia and Master Builders Association, called on the Government to not abandon the other reform measures.

Otherwise, the statement said, employers will be left with:

• An enterprise agreement system that is withering on the vine because of an unworkable Better Off Overall Test and Fair Work Commission approval requirements that are almost impossible to navigate;
• An award system that is far too complex and inflexible; and
• The lost opportunity for project life greenfields agreements to drive investment and jobs.

“We appreciate the extensive efforts made by the Government to develop the moderate and sensible package of reforms in the IR Omnibus Bill, and the support of Senators Pauline Hanson and Malcolm Roberts in working constructively with the Government on all the measures in the Bill,” the industry representatives jointly stated.

“It is important that the Government does not abandon the rest of the Bill and further efforts need to be made over the months ahead to secure support.”

AREEA will regularly update its members on the progress of this ongoing advocacy. Members seeking more information and/or are interested in being more closely involved, should contact [email protected].

Further background:

In February 2021 AREEA lodged a comprehensive submission to the Senate Committee Inquiry into the Government’s original IR Omnibus Bill.

AREEA also launched a new campaign on 1 March 2021 designed to promote industry and assist with building support for job-creating reforms.

Further, fixing enterprise bargaining, ‘project life’ greenfields agreements, restoring certainty to casual employment, and improving the performance of the Fair Work Commission, are four key policy priorities outlined in AREEA’s Pathway to Productivity campaign launched in 2019. You can read the business case for these important IR amendments here.