Australia: Casual conversion provisions: What do they mean for Victorian government employment?

One of the main ways unions in Australia have been able to limit casual work has been by inserting casual conversion clauses in awards and enterprise agreements. Under such clauses, casual employees obtain the right to request a permanent position after a certain period of service with their employer, usually 6-12 months.

In July of this year, a Full Bench of the Fair Work Commission (FWC) determined that modern awards should contain a provision enabling casual employees to elect to convert to full-time or part-time status, but with significant restrictions on this right.1

In this article, we consider the implications of the FWC's decision and how it will impact casual conversion provisions in enterprise agreements in Victorian Government employment.


As part of the modern awards review process, the Australian Council of Trade Unions (ACTU) sought to have a model casual conversion clause inserted in the 88 awards which did not have one – and the variation of casual conversion clauses in 17 awards that did have them.

The FWC Full Bench accepted the ACTU's argument that the unrestricted use of casual employment can operate to undermine the effectiveness of the safety net provided by modern awards and the National Employment Standards under the Fair Work Act 2009 (Cth) (FW Act).

Evidence presented to the FWC indicated that some employers engage persons who want permanent employment as long-term casuals. The Full Bench therefore concluded that it is fair and reasonable for those employees to have access to a mechanism for converting the casual employment to an appropriate form of permanent employment.

Under the model casual conversion clause proposed by the FWC, a casual employee can request conversion once they have:

  • been employed for at least 12 calendar months; and
  • over that period, have worked a pattern of hours on an ongoing basis which could continue to be performed on a part-time or full-time basis (without significant adjustment).

However, an employer may refuse a casual employee's request to convert to full-time or part-time on the grounds that:

  • a significant adjustment to the casual employee's hours would be required to accommodate the request;
  • it is known or reasonably foreseeable that the casual employee's position will cease to exist;
  • the employee's working hours will significantly change or be reduced within the next 12 months; or
  • on other reasonable grounds.

The employer must also provide all casual employees with information about casual conversion within 12 months of their engagement commencing.

The FWC invited submissions from interested parties on the proposed model casual conversion clause by 2 August 2017.

Proceedings relating to the insertion of casual conversion clauses in the affected modern awards, including transitional arrangements, are presently ongoing before various FWC members.2


Once finalised by the FWC, the application of the new casual conversion provisions will depend on whether a modern award applies to the particular employment. For many Victorian public sector employees, an enterprise agreement (rather than a modern award) determines their terms and conditions of employment.

Employees in numerous Victorian Government departments are covered by the Victorian Public Service Enterprise Agreement 2016 (VPS Agreement). The VPS Agreement does not have a provision for casual conversion. Instead, it includes a general commitment to promote 'ongoing forms of employment over casual and fixed term arrangements wherever possible'.3 In addition, the VPS Agreement commits the employer:

  • not to use casual labour to undermine the job security of ongoing employees; and
  • to employ casuals only to meet short-term work demands or specialist skill requirements.4

The State Government Agencies Award 2010 is one of the awards included in the ACTU's claim and the FWC's casual conversion decision. This Award applies to State public sector employers (other than departments and administrative offices) which are incorporated bodies established under State law.

However, many Victorian statutory authorities, for example Film Victoria, Victorian Workcover Authority, Parks Victoria and Greyhound Racing Victoria, have their own enterprise agreement. Of that sample of four agreements, only the Greyhound Racing Victoria agreement includes a casual conversion clause.5

In summary, the FWC's casual conversion decision will have only limited direct application to Victorian Government employees. However, now that casual conversion has been established as an award standard, it is likely to form the basis of union claims in future enterprise bargaining rounds across the Victorian public sector.


Evidence to the recent Victorian Inquiry into the Labour Hire Industry and Insecure Work indicated that casual conversion clauses have proved to be of limited effect in the labour hire context (where workers are overwhelmingly engaged as casuals). The Inquiry heard that many labour hire workers do not request conversion even where they have the right to do so, possibly because they prefer to retain their casual loading.6

Some employees do seek to invoke casual conversion rights however, and there have been two recent decisions exploring the extent of obligations imposed by casual conversion clauses in enterprise agreements.

In Wedgwood v Charles Sturt University T/A Charles Sturt University,7 the applicable agreement clause provided that a casual employee could apply for conversion to a continuing or fixed-term position after 12 months' service, where their average weekly hours equated to at least 70% of those of a full-time employee, and their performance had been satisfactory (among other conditions). The University would then determine whether to allow conversion.

In dispute proceedings instigated by an administrative staff member whose application for conversion to continuing employment had been met only with an offer of fixed-term employment, Commissioner Johns of the FWC found that the casual conversion clause in the agreement 'mandates nothing'. The clause did not provide an employee with a right of conversion to their preferred form of engagement. It simply left the question of conversion as a matter for the University to decide.

By contrast, in Tomvald v Toll Transport Pty Ltd,8 an employee succeeded in proceedings alleging his employer had breached the FW Act by failing to comply with an enterprise agreement provision allowing casual employees to elect to convert to permanent employment after six months of regular and systematic engagement, 'on a like for like basis'. The employee, a freight handler, had been employed for almost ten years and regularly worked hours similar to a full-time employee. After seeking conversion to full-time employment in accordance with the agreement, he was only offered a permanent part-time position at 30 hours per week.

Justice Flick of the Federal Court determined that the agreement provided a right to convert to full-time permanent employment at 38 hours per week, and the part-time offer made to the employee fell short of that entitlement. The employer had breached not only the agreement, and therefore section 50 of the FW Act, but also other provisions of the legislation relating to the misrepresentation of workplace rights and allowing employees access to their employment records. Justice Flick imposed civil penalties totalling $42,500 on Toll for these breaches, and awarded the employee $42,940 in compensation (plus 12.5% superannuation).

These decisions highlight that the wording of the applicable casual conversion clause in an award or enterprise agreement is critical in determining the reach of the obligations it imposes upon an employer. Further, employers may have to defend their actions based on these clauses in various forums including dispute proceedings in the FWC and award/agreement breach claims in the courts.


1 4-Yearly Review of Modern Awards – Casual Employment and Part-Time Employment [2017] FWCFB 3541 (5 July 2017).

2 See:

3 VPS Agreement, clause 14.2.

4 Ibid, clause 15.7.

5 Greyhound Racing Victoria Stewards and Associated Employees Enterprise Agreement 2016, clause 8.5.

6 Victorian Inquiry into Labour Hire and Insecure Work: Final Report, 31 August 2016, pages 95-96.

7 [2017] FWC 5617 (27 October 2017).

8 [2017] FCA 1208 (12 October 2017).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions