Coming soon to awards near you: casual employees right to convert to permanent employment and domestic violence leave
The Commission has decided that modern awards should contain a provision by which casual employees may elect to convert to full-time or part-time employment, subject to specified criteria and restrictions. They believe this is necessary in order for awards, together with the National Employment Standards (NES), to provide a fair and relevant minimum safety net of employment terms and conditions.
The Commission accepted a submission by the Australian Council of Trade Unions (ACTU) arguing that the unrestricted use of casual employment, without the safeguard of a casual conversion clause, may operate to undermine the fairness and relevance of the safety net.
To give effect to the decision, the Commission has developed a model casual conversion clause, proposed for inclusion in 85 modern awards which do not currently contain such a provision, with the following features:
within the next 12 months; or
Further consultation will occur with interested parties in relation to the model clause before it takes effect, with the prospect for some specific variations of the model in particular industries.
The existing casual conversion clauses in some awards will not change, although submissions will be invited about whether the current employer notification requirement in those awards should be simplified to correspond with the proposed notification requirement in the model clause. One feature of the employer notification requirement in existing clauses, absent from the model clause, is that they oblige employers to identify casuals eligible for conversion.
The ACTU had also applied for all awards to be varied in order to provide employees with a right to take up to ten days paid family and domestic violence leave per year, not accumulating from year to year and, if exhausted, up to two days of further unpaid leave on each occasion required.
That claim was rejected, as was the detail of the model clause proposed by the ACTU, which the Commission found to be “too broad and uncertain”.
Instead, the Commission has expressed the “preliminary view” that provision for unpaid family and domestic violence leave in awards was necessary to meet the following modern award objectives:
The Commission has indicated that it will give interested parties the opportunity to make submissions or call evidence before deciding the matter conclusively. Issues for further consideration, apart from the threshold question of whether the entitlement should exist at all, include:
Our prediction is that, by the end of the review, some formal recognition of the need for employees affected by family and domestic violence to take leave will be incorporated into modern award leave provisions.
It is obvious that the existing safety net of terms and conditions of employment in the NES and awards falls short of catering to the needs of workers affected by family violence who, often urgently, need time away from work to seek court orders or to find alternative accommodation. It is also obvious that domestic violence is far more prevalent than some, not affected, might imagine. Australian police deal with 5,000 domestic violence matters on average every week – that’s once every two minutes! 
Indicative of this is that paid family and domestic violence leave entitlements are now finding their way into some workplaces through enterprise bargaining or policy and into the public sector.
The cost to employers in the vanguard does not so far seem to have been particularly onerous. For example, the Commission heard expert evidence that Telstra, who included ten days paid domestic violence leave in their 2015 enterprise agreement, had seen 22 out of 32,000 employees take an average of two to three days leave over a six month period. A copy of the Telstra clause can be viewed here (see clause 33).
For further information or assistance, contact our Industrial and Employment law team.
 “Australian police deal with domestic violence every two minutes”, Clare Blumer, ABC News, 21 April 2016, http://www.abc.net.au/news/2016-04-21/domestic-violence/7341716 accessed 24 July 2017.