Services Australia must offer permanent roles to casuals eligible for conversion: Fair Work Commission

The Fair Work Commission has ruled that Services Australia must offer to convert employees' casual roles to permanent ones, if they had been employed there for 12 months. They must also have worked a regular pattern of hours for at least six months that could translate to full- or part-time work, and be rated as suitable in a merit process after applying for a vacant role.

Services Australia argued it would only have to offer permanent roles to casual staff if there was an existing ongoing vacancy in the agency similar to the role the workers had applied for.

Fair Work Commissioner Leigh Johns rejected the agency's claim in a ruling made in Melbourne on Wednesday, saying it would mean Services Australia could veto industrial laws requiring employers to offer casual conversion to staff.

The decision is a victory for casual staff and the Community and Public Sector Union, which brought the case to the umpire in June 2021 after Services Australia did not offer permanent roles to 19 employees who were in a merit pool and met the criteria for casual conversion.

Services Australia told staff there was no available vacancy or similar vacancy to which they could be appointed on an ongoing basis.

About 10 per cent or 3200 of the agency's staff were casually employed last year.

Fair Work's finding also has potential consequences for other federal public service agencies with staff working as casuals for prolonged periods, requiring them to convert their positions into ongoing ones where eligible. The public service employed 8700 casual staff last year.

Commissioner Johns found Services Australia was incorrect in arguing there needed to be a pre-existing vacancy at the time a casual was assessed for conversion and that this was an essential element of the recruitment and selection processes required under Commonwealth law.

The CPSU argued that industrial laws requiring employers to offer a permanent role - called the casual conversion term - did not allow them to override the obligation if they preferred to employ staff casually.

The very purpose of the casual conversion term was to require employers to offer permanency to eligible casual employees, and did not ask whether that was something the employer wanted to do, the union argued.

It said Services Australia's view was that the agency head had complete discretion to side-step the casual conversion term, and decide not to offer eligible casual employees ongoing employment, even where they were placed in an active merit pool for a vacancy similar to their current role.

The CPSU said Services Australia and the public service commission did not appear to accept the casual conversion term itself created the vacancy, or that industrial laws deemed that an ongoing role existed which must be offered to the eligible casual employee.

The Australian Public Service Commission's view instead was that there must be two vacancies for the eligible casual employee to be made an offer, the union argued.

These included one that was advertised, followed by a merit selection process, and the creation of a merit pool in which the eligible casual employee was placed. For an eligible casual employee to be made an offer, there must be a "second vacancy" at the time they were assessed for conversion.

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Commissioner Johns rejected there was a need for a "second vacancy", and said Services Australia's arguments would allow an agency head to frustrate industrial laws requiring them to offer permanent employment to casuals eligible for conversion.

"To do otherwise would allow Services Australia to assert a preference that certain work continues to be performed on a casual basis instead of an ongoing basis. That is not a correct application of the casual conversion term," he said.

"No other national system employer could avoid its obligation to make an offer of casual conversion in these circumstances. Neither can the Commonwealth.

"An offer can and must be made to eligible casuals sitting in an active merit pool at the time they are assessed for casual conversion."