By Fiona Waring

Amendments to the Fair Work Act 2009 (Cth) (Fair Work Act) last year changed the law on casual conversion and introduced a new pathway to permanent employment for casual employees, known as the “Employee Choice Pathway”.

The previous casual conversion laws required employers to offer their casual employees’ conversion to full-time or part time employment after 12 months of employment, if certain requirements were met. Employees could also make a request to convert their casual employment in some circumstances.

Under the new casual conversion laws, employers are now no longer required to actively offer casual conversion to their casual employees (in most circumstances).

Instead, the responsibility is now on casual employees to tell their employer they want to convert to permanent employment (if they wish to do so), through the new Employee Choice Pathway.

The Employee Choice Pathway has been available to most casual employees from 26 February 2025.

However, casual employees of small business employers will only be able to access the Employee Choice Pathway from 26 August 2025.

What is the Employee Choice Pathway and when can employees use it?

The Employee Choice Pathway gives casual employees the choice to notify their employer that they want to change their employment status from casual to part-time or full-time, if they wish to do so.[1]

Casual employees are only eligible to access the Employee Choice Pathway if they:[2]

• have been employed by their employer for at least 6 months (or 12 months for employees of small business employers); and

• believe they are no longer a casual employee.[3]

What is a casual employee?

Under the Fair Work Act, an employee is a casual employee if:[4]

• the employee would be entitled to a casual loading or casual rate of pay under an applicable modern award, enterprise agreement or contract of employment; and

• the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work.[5]

Both the terms of the employment contract and the practical reality of the employment relationship are now relevant to determining whether a casual employment relationship exists.[6]

This means that if a casual employee is treated as a full-time or part-time employee in practice, the employee may be able to seek to convert to permanent employment after 6 months of employment (or 12 months for small business employers), regardless of what their contract says.

What do employers need to do if they receive a casual conversion notification?

If an employer receives a valid casual conversion “notification”, employers must, within 21 days of the notification being given:

• first, consult with the employee about the notification;[7]

• then, provide the employee with a written response.[8]

The employer’s response needs to state whether the employer accepts or refuses the casual conversion notification.[9]

An Employer may refuse an employee’s casual conversion notification if: [10]

• the employee still meets the Fair Work Act definition of casual employee; or

• there are fair and reasonable operational grounds for refusing;[11] or

• accepting the notification would result in the employer failing to comply with a recruitment or selection process required by law.

Disputes about casual conversion

Disputes between an employer and employee about casual conversion that are unable to be resolved at a workplace level can be dealt with by the Fair Work Commission, including by arbitration in some circumstances.[12]

Workplace protections for employees

The Fair Work Act amendments have also introduced additional protections for employees in respect of their casual conversion rights.

Employers are prohibited from changing an employee’s hours of work or pattern of work, or terminating their employment, to avoid rights or obligations under the casual conversion provisions.[13]

An employee’s rights under the casual conversion provisions are also workplace rights for the purposes of the general protections provisions of the Fair Work Act.[14]

This means that employers cannot, among other things, dismiss an employee because they gave their employer a casual conversion notification or had the right to give a notification.

If you have any questions about how these casual conversion requirements may affect you or your business, please contact HLS Legal on (08) 9322 5202.

This article is intended to be informative only and does not constitute legal advice. If you are concerned about your individual circumstances, please contact a lawyer.

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[1] Fair Work Act, s 66AAB.

[2] Fair Work Act, s 66AAB.

[3] Within the meaning of section 15A of the Fair Work Act.

[4] Fair Work Act, s 15A.

[5] This requirement is assessed having regard to a number of factors set out in s 15A(3)(c), including whether there is a regular pattern of work for the employee and whether there is an inability for an employer elect to offer, or not offer, work or an inability of the employee to elect to accept or reject work.

[6] Fair Work Act, s 15A.

[7] Fair Work Act, s 66AAC(3)

[8] Fair Work Act, s 66AAC(1) and (2).

[9] Fair Work Act, s 66AAC(2).

[10] Fair Work Act, s 66AAC(4).

[11] Examples of fair and reasonable grounds are set out in s 66AAC(5).

[12] Fair Work Act, ss 66M; 66MA.

[13] Fair Work Act, s 66L(1).

[14] Fair Work Act, s 66L(3).