Casual employment and the modern award
The Full Bench of the Fair Work Commission issued a decision on 26 August 2024 to clarify how the existing modern award definition of casual employee interacts with the new Closing Loopholes changes regarding casual employment.
This decision means that 151 modern awards are being modified to include a note clarifying that casual employees who were casual under s. 15A of the Fair Work Act 2009 on or before 26 August 2024, will be taken to be casual employees after 26 August 2024.
The standard provision in modern awards states that a “casual employee” is defined by s. 15A of the Fair Work Act 2009.
Prior to this decision being delivered, there was a danger that employees and employers could have assumed that a casual employee under the modern award was only a casual employee in accordance with the amended definition in s. 15A.
The modern award did not recognise that casual employees who were taken as casual before the amendment, would continue to be categorised as casual following the amendment.
The Australian Industry Group raised this concern with the Fair Work Commission, suggesting that the Commission vary the definition in the modern awards to provide clarity.
The Full Bench concluded that it would be sufficient to include a note to clarify the definition rather than amend the text of the definition in the modern awards.
Employers should be aware that the Commission has clarified that a person who was a casual employee of an employer under the statutory definition as it existed before 26 August 2024 will remain a casual employee of that employer within the meaning of s.15A of the Fair Work Act 2009 as amended.
Dale McQualter is a Partner at Maddocks in Melbourne, specialising in workplace health and safety, employment, anti-discrimination, and industrial relations. Emma Short is a Senior Associate at Maddocks in Sydney, specialising in employment law. Naomi Maddocks is a Lawyer at Maddocks in Sydney.
