Whether there is an absence of a firm advance commitment to continuing and indefinite work according to an agreed pattern of work must be assessed at the time the offer was made, against the following exhaustive list of factors: 

• whether the employer can elect to offer work and whether the person can elect to accept or reject work;
• whether the person will work only as required;
• whether the employment is described as casual employment; and
• whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument. 

Employers will also be obliged to provide casual employees with a Casual Employee Information Statement, as prepared by the Fair Work Ombudsman.

Reasonable grounds for an employer not to make an offer for casual conversion after 12 months, or to refuse an employee's request for casual conversion include that:

• the employee’s position will cease to exist in the period of 12 months after the time of deciding not to make the offer;
• the hours of work which the employee is required to perform will be significantly reduced in that period;
• in that period, there will be a significant change in the days or times that the employee’s hours of work are required to be performed, which cannot be accommodated within the days or times the employee is available to work during that period; and
• making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory.

An employee may not make a request for casual conversion if they have refused an offer of casual conversion in the last six months, the employer has advised that they will not be making an offer of casual conversion, or the employee has had a request refused in the last six months.  

• The employer must explain to the employee that it is a "simplified additional hours agreement";
• The agreement must be made before the start of the first period of additional hours;
• If the agreement is not made in writing, the employer must make a written record of the agreement before the end of the first period of additional hours; and
• Additional hours must be part of one or more periods of at least three hours.

Both types of direction include requirements that will be familiar to JobKeeper eligible employers, including that:

• the employee must receive at least three days' written notice of the direction; and
• the employer must consult with the employee or their representative (which must be recorded in writing).

Employers must also reasonably believe that the direction is a necessary part of a reasonable strategy to assist in the revival of their enterprise. 

Employees under these directions must be paid the greater of their existing rate of pay, or the base rate of pay for the new duties (if those duties are higher duties).   

1. The Omnibus Bill seeks to ease the rigidity/earnestness with which the FWC has in recent times assessed whether an EBA meets the Better Off Overall Test (the BOOT). The FWC can only have regard to patterns of work or types of employment if these are engaged in by award covered employees or are reasonably foreseeable at the time the application for approval is made.
2. The Fair Work Act currently enables the FWC to approve an agreement that does not meet the BOOT if it is not against the public interest.  

The Omnibus Bill provides that some circumstances like the impact of COVID-19 may be a reason in themselves for an approval not being contrary to the public interest; the proposal has met the ire of unions and the Labor Party.
There is a sunset clause on this "COVID-19" provision varying the BOOT so it will expire two years after the amendments commence. The amendment is providing one of the most controversial aspects of the proposed legislation and IR Minister Porter has now indicated he is not wedded to the change.  

It tightens up those who are eligible to vote in an EBA ballot which has been a controversial issue, particularly with casuals. It proposes that those who are eligible to vote are:

• full and part-time employees employed at the time when the employer requests staff to vote; and 
• casual employees who perform work at any time during the seven day access period.

This might mean that an employer must ensure that anyone in the seven day period immediately before the vote is given an opportunity to then vote and a casual who may have got access to the material during the access period may be ineligible to vote because they did not perform work during the seven day access period.

The Omnibus Bill now enables a franchisee employer to become a party to an existing enterprise agreement if: 

• a majority of the employees of the franchisee employer approve the agreement in the usual way as for a new enterprise agreement; and 
• the agreement to which the franchisee employer would become a party covers at least two or more other employers and the employer carries on a similar business activity under the same franchise as those other employers.  

1. The Omnibus Bill seeks to ease the rigidity/earnestness with which the FWC has in recent times assessed whether an EBA meets the BOOT. The FWC can only have regard to patterns of work or types of employment if these are engaged in by award covered employees or are reasonably foreseeable at the time the application for approval is made.
2. The Fair Work Act currently enables the FWC to approve an agreement that does not meet the BOOT if it is not against the public interest.  

The Omnibus Bill provides that some circumstances like the impact of COVID-19 may be a reason in themselves for an approval not being contrary to the public interest; the proposal has met the ire of unions and the Labor Party.

There is a sunset clause on this "COVID-19" provision varying the BOOT so it will expire two years after the amendments commence. The amendment is providing one of the most controversial aspects of the proposed legislation and IR Minister Porter has now indicated he is not wedded to the change.  

The new criminal offence requires an element of dishonesty and an intention on the party who has underpaid to be captured by the criminal provision and does not apply to one-off underpayments. 

The offence will carry a maximum penalty of four years' jail and/or a fine of up to AU$1.1 million for an individual and up to AU$5.5 million for a body corporate. Where an individual is convicted of the criminal offence, they will be automatically disqualified from being a company director for a period of five years under the Corporations Act 2001. 

Other key changes include:

• Increased maximum civil penalties by 50% where remuneration-related contraventions are not the result of intentional dishonest conduct but are a result of inadvertent errors. Courts are also empowered to issue adverse publicity orders.
• Proposed tier system with separate maximum penalties depending on the size of the employer and whether the contravention is a serious civil contravention.
• Introduction of a new alternative penalty calculation method for remuneration-related contraventions by employers (other than small business employers) based on a multiple of the ‘value of the benefit’ obtained from the contravention. The value of the benefit is determined by the court and multiplied by either two or three times its value. The ultimate penalty imposed on a relevant employer will be the greater of the maximum penalty or the ‘value of the benefit’ times the applicable multiplier. 
• Introduction of a non-exhaustive list of the factors the FWO may take into account in deciding whether to accept an enforceable undertaking in relation to a civil contravention (including: whether the matter was self-disclosed to the FWO, the circumstances, nature and gravity of the contravention, willingness to cooperate with the FWO and address the impact of the contravention).
• Increases to the small claims process cap from AU$20,000 to AU$50,000.
• Introduction of a civil provision which precludes employers from publishing job advertisements with pay rates less than the applicable national minimum wage.
• Proposed 50% increase in infringement notices fines and maximum penalties for sham contracting and failing to comply with compliance notices from the FWO.