Circular 2021/07: Fair Work Commission review of casual terms in awards

Published

Purpose

  1. The purpose of this Circular is to inform Australian Government agencies of the completion of the Fair Work Commission’s review of casual terms in modern awards, and subsequent changes that have been made through the review to the Australian Public Service Enterprise Award 2015 and the Australian Government Industry Award 2016.

Background

  1. The Fair Work Commission (FWC) was required to undertake a review of relevant terms in modern awards to identify and correct any interaction issues with the changes to casual employment that came into effect through amendments to the Fair Work Act 2009 (FW Act) in March 2021.
  2. The review specifically considered the new definition of casual employment and casual conversion arrangements. APSC Circular 2021/03 discusses these changes, in the context of both APS and non-APS employers.
  3. Awards relevant to Commonwealth employment were considered in the final stage of the review.
  4. The FWC sought submissions from interested parties on the use of the term ‘irregular and intermittent’ to describe casual employment in the Australian Public Service Enterprise Award 2015 (APS Award) and how this related to the operation of the new definition of casual employment.
  5. The FWC also provided provisional views regarding the Australian Government Industry Award 2016 (Australian Government Award).
  6. The APSC provided a submission relevant to these awards.
  7. The review was completed by the FWC on 27 September 2021, with determinations issued notifying the changes that have been made to modern awards.

Summary of changes

  1. In order to make the APS Award operate effectively with the FW Act it has been varied to:
  1. Add a definition of ‘casual employee’ which adopts the casual employee definition under s.15A of the FW Act;
  2. Add a provision to the award that the basis of engagement for an employee covered by the award is the PS Act; and
  3. Reference that an irregular and intermittent employee is a casual employee (as defined) and works on an irregular and intermittent basis only.
  1. Based on the FWC’s consideration of the APS Award, an existing reference to irregular and intermittent work has also been retained in the Australian Government Award. Other minor administrative changes, as summarised in the APSC submission, have been made.
  2. Casual conversion provisions are now be included in both the APS Award and the Australian Government Award. Agencies are asked to refer to the APSC Circular 2021/03 for further information on how casual conversion operates across APS and non-APS employers.

Actions agencies need to take

  1. Awards set out the minimum wages and conditions to which employees are entitled. Awards do not apply when an employer has made an enterprise agreement with its employees other than in a situation where base rates of pay in an enterprise agreement are lower than those in a relevant modern award.
  2. As such, this decision will have no effect on existing enterprise agreements including with regard to casual employment.
  3. Agencies who do not have an enterprise agreement in place should review their casual arrangements and practices to establish processes that ensure compliance with the relevant award and the FW Act, as amended.

Further information

  1. For further information please contact the Australian Public Service Commission at workplacerelations@apsc.gov.au or your agency’s relationship manager.
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