Casual conversion for seasonal workers becomes a live question once the same people come back for a second or third peak. Under the Fair Work Act 2009, a casual who believes they are no longer a true casual can give written notice asking to become full-time or part-time, and the employer must answer in writing within 21 days.
This article follows that employee choice pathway through a returning crew, including the one point, breaks between seasons, that you should confirm with the Fair Work Ombudsman or an adviser.
Why returning seasonal casuals raise the question
A seasonal casual who returns every year has one of the longest records on your crew, even if each stint is short. That history helps when you are rehiring seasonal workers, but it can also lead a worker to believe the job now looks like ongoing work, and the Act lets them say so in writing.
If you are still choosing how to staff the next peak, the choice between fixed term, casual or labour hire comes first, because this article starts once a casual is engaged. Whether a flexible role joins the permanent core is a planning question, covered in the article on the flexible workforce model of permanent, casual and labour hire staff. Moving people across by your own choice is covered in moving seasonal staff to permanent.
The pathway in one paragraph
A casual can give their employer a written notification (section 66AAB) if they believe they no longer meet the casual definition in section 15A and have been employed for at least 6 months beginning the day the employment started, or 12 months with a small business employer. It is not available if, in the previous 6 months, the worker received a refusal or had a dispute resolved. The employer must then consult the worker and reply in writing within 21 days, with reasons for any refusal (section 66AAC). The steps for tradespeople are in the post on the employee choice pathway for trade casuals.
Grounds for not accepting a notification
Section 66AAC(4) introduces the grounds with the words "the employer may not accept the notification on any of the following grounds". Section 66AAC(2)(a)(ii) requires the response to state that the employer "does not accept the notification on one or more grounds referred to in subsection (4)", so a refusal must rest on one of the three grounds below.
The worker still meets the casual definition
The first ground is that the worker still meets the casual definition in section 15A(1) to (4), judged on the real substance, practical reality and true nature of the relationship. The test is whether there is an absence of a firm advance commitment to continuing and indefinite work. The Act lists factors: whether either side can choose to offer or accept work, whether continuing work is reasonably likely, whether full-time or part-time staff do the same work, and whether there is a regular pattern. No single factor decides it.
Fair and reasonable operational grounds
The second ground is that there are fair and reasonable operational grounds. Section 66AAC(5) gives three examples: substantial changes to the way work is organised, significant impacts on the operation, or substantial changes to the worker's terms reasonably needed to comply with a fair work instrument such as an award. The Act says the grounds "include" these, so the list is not closed.
A legally required recruitment process
The third ground applies where accepting would breach a recruitment or selection process required by a law of the Commonwealth, a State or a Territory. The Act's own example is the Australian Public Service merit principle. Unless a law of that kind binds your business, this ground will not be open to you.
Applying the grounds to a seasonal crew
The first ground turns on facts you already hold, and for a returning crew they tend to point in two directions.
- Pointing to casual. You decide each year whether to offer work, the worker decides whether to accept, and nobody has promised a place next season.
- Pointing away from casual. The same roster repeats every peak, full-time or part-time staff do the same work, or both sides treat the job as ongoing. The Act says a mutual understanding can be inferred from conduct, so a "see you next season" repeated every year can matter.
For the second ground, be specific. If the work exists for a few weeks a year, say what would change and how it would affect the operation, in terms someone outside the business could follow. A general preference for casuals is not one of the Act's examples.
Section 66L(1) bars reducing hours, changing the pattern of work or ending employment to avoid a right under these provisions, and the Act treats giving a notification as a workplace right protected from adverse action under Part 3-1. Take advice before you leave a worker who has notified off next season's list.
Chandler Personnel has two divisions: Chandler Recruitment for permanent recruitment and Chandler Services for labour hire in Melbourne. For South Australia, see the casual-to-permanent pathway in South Australia.
Where the Act's wording leaves breaks between seasons open
The test in section 66AAB is "a period of at least 6 months beginning the day the employment started", or 12 months where the employer is a small business employer when the notification is given. The Act defines that term separately, so check whether you qualify.
Those words do not say how a gap between seasons is treated, or whether a break resets the count, so do not assume either answer. Confirm the position with the Fair Work Ombudsman, or take advice, before you accept or refuse because of a break.
Keeping records that support your answer
The notification goes to the employer. For a worker employed by a labour hire company, that is the company, so the file belongs with whoever holds the employment.
- Engagement dates. The first day of employment and the start and end of each stint.
- Notification and consultation. The date the notification was given to you, a copy, and notes of what you discussed and when. The 21 days count from when the notification is given to you.
- The written reply. Your acceptance, or the ground you relied on and your reasons. For an acceptance, add full-time or part-time status, hours and start date.
- Evidence behind the ground. Rosters, offer and decline history, headcount plans and the award terms you relied on.
- Earlier refusals and disputes. Their dates, because either one in the previous 6 months bars a fresh notification.
Related Resources
- Fair Work Act
- Employee choice pathway for trade casuals
- Moving seasonal staff to permanent
- Rehiring seasonal workers
- Casual-to-permanent pathway in South Australia
- Permanent recruitment
- Labour hire in Melbourne
Frequently Asked Questions
How long must a casual work before they can ask to become permanent?
Under section 66AAB, a casual can give a written notification after at least 6 months beginning the day the employment started, or at least 12 months where the employer is a small business employer when the notification is given. The worker must also believe they no longer meet the casual definition in section 15A.
How long do I have to respond to a casual conversion request?
You have 21 days after the notification is given to you. Section 66AAC requires a written response, and you must consult the worker first. The response must say whether you accept or do not accept on one or more of the listed grounds, with reasons if you refuse. If you accept, it must state full-time or part-time, the hours after the change and the day it takes effect.
Can I refuse a seasonal worker's conversion request?
Yes, but only on the grounds in section 66AAC(4): the worker still meets the casual definition, there are fair and reasonable operational grounds, or accepting would breach a recruitment or selection process required by law. Consult first, name the ground and give reasons in writing. Seasonal work is not listed as a ground on its own, so your reasoning has to fit one of the three.
Does the 6 month period restart if a seasonal worker leaves and returns?
The Act says "a period of at least 6 months beginning the day the employment started". Those words do not say how a break between seasons is treated, so do not assume either answer. Confirm the position with the Fair Work Ombudsman, or take advice, before you accept or refuse a notification on the basis of a gap.
Who receives the request when a worker is supplied by a labour hire company?
Section 66AAB lets a casual employee give "an employer" a written notification, and section 66AAC puts the duty to consult and reply on "the employer". For a worker employed by a labour hire company, the employer is that company. Check who the employing entity is on the worker's contract.
Answer the notification before day 21
Treat every conversion request from a returning seasonal casual as a 21-day clock. Consult the worker early, then either accept or rest your refusal on one of the Act's three grounds, in writing with reasons. Keep dated records of each stint, and take advice where a gap between seasons is the sticking point. When you are ready to staff the next peak, you can request seasonal staff from Chandler Personnel.
