Unlocking the new Employee Choice Pathway

For an employee to be eligible under the Pathway, the employee must satisfy the following:

• The employee has been employed for at least 6 months (or 12 months if the employer is considered a small business which is defined as (i.e., an employer with fewer than 15 employees)); and
• The employee believes they no longer meet the definition of a casual employee (for example, based on regularity of shifts or certainty of future work dates).
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Casual employees will not be able to seek conversion under the Pathway if they:

• are currently engaged in a dispute with their employer about conversion to permanent employment; or
• in the last 6 months, their employer refused a previous notice or resolved a dispute about the employee choice through a dispute resolution process; or
• were employed before 26 August 2024 and in the last 6 months they:
  • refused an offer to convert to permanent employment; or
  • they received notice from their employer that no offer would be made for casual conversion; or
  • their employer previously refused a request for casual conversion.
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Employers that receive a notice from an employee under the Pathway are required to consult with the employee in relation to the request and respond to the employee in writing within 21 days, including providing the employee reasons for any refusal. Valid reasons for refusal are limited but a valid reason could be provided on the basis that an employee still meets the definition of a casual worker and that there is no future commitment to ongoing work in place. It is important that the employer’s decision and reasoning are transparent and fair to ensure compliance with the law.

Employers should review the eligibility and/or upcoming eligibility of current employees to follow the Pathway. Employers may experience an increase in employees seeking to transition as they become aware of their newly afforded rights. Employers should seek to consult their employees to inform workplace management strategies. Practically speaking, employers may be required to revise staff policies and procedures with respect to scheduling, payroll and benefits.

Employers should consider issues on the following checklist:

• Audit the workforce – identify which employees are likely to be eligible under the Pathway.
• Prepare for future requests.
• Update workplace policies and procedures.
• Educate and train HR and management teams to properly handle requests in a manner which reflects the business’s positive approach to the change.
• Communicate with employees – proactively inform employees about the Pathway option available to them. Clear communication can help manage expectations and reduce uncertainty.
• Review employment contracts and enterprise agreements; and
• Update employment contracts and enterprise agreements to ensure they are compliant with the Pathway.
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If you have any questions or concerns in relation to this new regime in the workplace, please contact us.

This article was co-written by Rhiannon Cameron, Associate.

This article is not legal advice.  It is intended to provide commentary and general information only.  Access to this article does not entitle you to rely on it as legal advice.  You should obtain formal legal advice specific to your own situation.  Please contact us if you require advice on matters covered by this article.