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Under the Closing Loopholes Bill changes there is a new definition of ‘casual employee’.
The new definition will only apply from 26 August 2024 onwards to all new casual employees.
Employers will need to carefully consider how any prospective new employees from this date (26
August 2024) should be employed.
Critically, this new definition means to determine whether a worker is a permanent or a casual, it will
no longer be sufficient to simply look at the initial offer of employment or the terms of the written
contract in isolation.
Instead what will be assessed is ‘real substance, practical reality and true nature of the employment
relationship’, including how the contract will actually be performed in practice.
The Fair Work Act sets out specific factors which indicate things a Court or Tribunal will take into account in deciding whether an employee has been correctly engaged as a casual.
There are no rules as to the weighting given to each of the factors in the decision-making process, with
no one factor necessarily decisive. The factors are a guide, with the ultimate question being whether
there is an ‘absence of a firm absence of a firm advance commitment to continuing and indefinite work’.
To help you with an acceptance response see the Acceptance of notification to convert to permanent employment & Non-acceptance of notification to convert to permanent employment letter templates within this Handbook.
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