When a regular casual hands you a written notice saying they want to move to full-time or part-time work, a clock starts. Under the employee choice pathway, you must respond in writing within 21 days, and you can refuse only for the reasons the Fair Work Ombudsman lists. This guide is a manager's workflow for those 21 days: check the notice, consult, decide, then write the reply.
It is written for supervisors and HR leads who employ casuals directly. It also covers hosts who use labour hire, because the first question for them is who the notice goes to. Check the Fair Work Ombudsman employee choice guidance for when the pathway applies to your business.
What the employee choice pathway notice is and who can give one
The Fair Work Ombudsman describes the pathway as a way for eligible casuals to change to full-time or part-time employment if they want to. The employee starts it by giving written notice. A casual can do that if they have been employed for at least 6 months, or 12 months in a small business, and they believe they no longer meet the casual employee definition. The employee choice pathway does not let you ignore a notice, and you can refuse it only for a permitted reason.
The Ombudsman also says a casual cannot give notice in two situations. The first is while they are in an ongoing dispute with you about changing to permanent employment under the pathway. The second is when, in the previous 6 months, you refused an earlier notice or the two of you resolved a dispute about employee choice. Part of your first check is whether either applies.
The notice goes to the employee's employer. If your casuals are supplied by a labour hire provider, the provider is usually their employer, so ask the provider what it needs from you if a worker raises the subject. If you are unsure how the pathway applies to a labour hire arrangement, check the Fair Work Ombudsman page. Seasonal returners are covered in a separate post on casual conversion for seasonal returners, and this guide leaves them there.
Your 21 day clock, step by step
The Ombudsman says you must respond in writing within 21 days of the employee giving the notice. The sequence below is a suggested workflow, not an official one.
- Log the notice the day it arrives. Record the date, who received it and a copy of the text. The 21 days run from the day the employee gave it.
- Check that the notice is allowed. Look at length of service, whether the employee says they no longer meet the casual definition, and whether either bar above applies.
- Book the consultation early. The Ombudsman says you must consult the employee before responding. Do not leave it for the last week.
- Hold the conversation. It covers what would change if you accept: whether the employee would be full-time or part-time, what their hours would be and when the change would take effect.
- Decide. Accept, or refuse on a permitted reason. Write down why.
- Send the written reply before day 21 and keep a copy with the notice and your consultation notes.
Treat the 21 days as a ceiling, not a target. A reply that arrives on day 20 leaves nobody any room if something goes wrong with delivery or a manager is away.
Accepting: what the written reply must contain
If you accept, the Ombudsman says your written response must include three things: the employee's new employment status, for example full-time or part-time; their new hours of work; and when the change will take effect.
The change must take effect from the first day of the employee's first full pay period starting after you give your response, unless you and the employee agree another day. That default matters for payroll, so tell whoever runs your pay cycle as soon as you accept.
An accepted notice also changes how the person fits into your roster. A post on rostering casuals and part-timers covers the rostering side. If you recruit permanent staff to fill other roles at the same time, permanent recruitment through Chandler Recruitment, the permanent recruitment side of Chandler Personnel, is the service for that.
Refusing: the only permitted reasons
If you do not accept, the Ombudsman says your written response must include your reasons, and the reasons can only be one of the following:
- The employee still meets the casual definition. The Ombudsman's definition has two parts: no firm advance commitment to ongoing work, taking into account a number of factors, and an entitlement to a casual loading or specific casual pay rate.
- There are fair and reasonable operational grounds. The Ombudsman introduces three examples with "such as": substantial changes to how work in the business is organised, significant impacts on the operation of the business, or substantial changes to the employee's conditions that would be needed so you do not break rules in an award or agreement.
- A legally required recruitment or selection process. The Ombudsman's wording is that accepting the change would mean you do not comply with a recruitment or selection process required by law.
Three cautions follow. Do not treat the three examples of operational grounds as a complete list, and check any reason you plan to give against the Ombudsman's wording before you rely on it. Name the specific reason in the letter and say what facts support it. Also, a casual loading alone does not settle the first reason, because the definition has the two parts above. Reviewing a regular casual's pattern ahead of any notice belongs in a separate guide on the casual employee definition.
What you must not do to avoid the notice
The Ombudsman says an employer cannot take certain actions to avoid its obligations or an employee's rights under the pathway. These include reducing or varying the employee's hours of work, changing their pattern of work and terminating their employment. The words "to avoid" matter, so always read the rule with them. A cautious approach is to leave the employee's hours and pattern as they are while the notice is open, and to get advice before changing either. Roster changes made for other reasons are covered in a post on changing a roster, but read this rule before you change anything for a casual who has given notice.
The Ombudsman also says casuals are protected from adverse action because they have a workplace right, including the right to notify you, to receive a written response and to take part in a dispute. Conversion of contractors is a different path again, covered in a post on turning contractors into permanent hires.
Related Resources
- Fair Work Ombudsman employee choice guidance
- Casual conversion for seasonal returners
- Turning contractors into permanent hires
- Rostering casuals and part-timers
- Changing a roster
- Permanent recruitment
- Request staff
Common Questions About Responding to a Casual's Notice
1. How long do I have to respond to a casual's notice?
The Fair Work Ombudsman says you must respond in writing within 21 days of the employee giving the notice. Your response either accepts the change or does not accept it. Because you must consult the employee first, plan the consultation early in that window and keep a record of the day the notice arrived.
2. Do I have to consult the employee before I reply?
Yes. The Ombudsman says that before responding you must consult with the employee. That includes discussing what would change if you accept the notice: whether the employee would be full-time or part-time, what their hours of work would be and when the change would take effect.
3. What reasons can I give for refusing?
Three, according to the Ombudsman: the employee still meets the casual employee definition; there are fair and reasonable operational grounds, such as the examples it lists; or accepting would mean you do not comply with a recruitment or selection process required by law. Your written refusal must give the reasons.
4. Can I cut a casual's hours to avoid a notice?
No. The Ombudsman says an employer cannot reduce or vary hours, change the pattern of work or terminate employment to avoid its obligations or the employee's rights under the pathway. If you are considering any change to a casual who has given notice, check the Ombudsman's page and get advice first.
5. What happens if we cannot agree?
The Ombudsman says that if a dispute cannot be resolved at the workplace, it can be heard by the Fair Work Commission. The Commission generally tries to resolve it informally first, through mediation or conciliation. If that fails, it can arbitrate, and the result can be a legally binding decision.
Log the Notice and Start the Clock
The pathway is manageable when you treat it as a short project with a fixed end date: log the notice, check it is allowed, consult, decide on a permitted reason and write the reply. Keep the paper trail in one place so you can show what you did and when. If you employ casuals through a labour hire provider, ask the provider what it needs from you before a notice arrives. If you need extra hands while you work through a notice, you can request staff from Chandler Personnel.
