There are changes on the way that CAN affect all employees covered by the Children’s Services Award 2010 or the Educational Services (Teachers) Award 2010 potentially in the coming months.

The Fair Work Commission decided on 5 July 2017 to change some casual and part-time clauses in modern awards but is seeking input/feedback in July and August 2017.

The Australian Council of Trade Unions (ACTU) sought the following changes:

• An absolute entitlement for casual employees  to convert to permanent employment after six months of regular employment;
• A minimum engagement period of 4 hours for part-time and casual employees;
• A prohibition on an employer hiring any new casual or part-time employees prior to offering additional hours of work to existing part-time and casual employees.

The Australian Childcare Alliance (ACA) objected to all the changes sought by the ACTU. Mr Paul Mondo, National President of ACA, as a witness in the proceedings and through ACA's submission, stated, “If the minimum engagement was extended to 4 hours, centres would have to find other duties for casuals in the spare hours of their shift and the centre would then be overstaffed when compared to the regulations, which would result in an increased cost that would be passed onto families.”

In part, the ACTU's claims were either rejected or altered in favour of employers.
 
Clause to convert Casual Employees to Part-Time/Full-Time Employment
 
Notwithstanding, the Fair Work Commission decided that a casual conversion clause should be included in all Awards (including the Children’s Services and Educational Services (Teachers) Award).
 
Broadly, this will mean that in the Children’s Services and Teachers Awards, where any casual employee having worked regular hours for at least 12 months can request to be converted to become a ‘permanent’ full-time or part-time employee to work those same hours (with some reasonable adjustments). That said, such a request could be refused by the employer where it was reasonably foreseeable that the casual employee’s hours would significantly change or reduce within the next 12 months. 

Employers will also be required to provide a copy of the model conversion clause to all casual employees in their first 12 months of employment.
 
Minimum Engagement
 
ACA successfully argued against the ACTU's claim to increase the minimum engagement from 2 hours to 4 hours under the Children’s Services Award. The minimum engagement in the Children’s Service Award will therefore remain 2 hours.
 
While refusing the ACTU's 4 hour minimum engagement claim, the Fair Work Commission has flagged an intention to insert a 2 hour minimum engagement clause into the Teachers Award. However, the Teacher's Award already stipulates the minimum engagement for casuals as being a quarter day, which is 2 hours.
 
Next Steps

The Fair Work Commission has asked for further submissions to the proceedings and will give ACA, ACA NSW and its members the opportunity to respond to the proposed wording for the ‘model’ casual conversion clause before it is inserted into any modern award. It is therefore likely that the changes will not come into effect for, at least, a few months.
 
ACA NSW members are invited to provide input/feedback via this survey form. So far, ACA NSW has its concerns through the initial questions as follows:

1. do casual employees understand that as part-time/full-time employees they will then be receiving (lower) rates that do not include the casual loadings;

2. will childcare service providers as small businesses still be subject to potential unfair dismissal claims if they discontinue casual staff before their 12 month anniversary;

3. will there be a phase-in (or amnesty) period before this Fair Work Commission decision takes full effect; and

4. what kinds of documentation will be required by employers to prove if casual employees want to remain as casuals before their 12 month anniversary.

ACA and ACA NSW will provide any further updates on this matter as they come to hand.