Lots of people start a job as a casual and keep working the same days for months or years. At some point they wonder whether they are still really casual. Federal workplace law now gives many of these workers a clear way to raise the question. It is called the employee choice pathway.
The rules sit in the Fair Work Act 2009 and are explained by the Fair Work Ombudsman. They changed on 26 August 2024 with a new definition of a casual employee. This article walks through who can use the pathway, how it works and what employers can and cannot do.
What counts as a casual employee now
From 26 August 2024 the Act has had a new definition of a casual employee. According to the Fair Work Commission, a casual has no firm advance commitment to continuing and indefinite work. They must also be entitled to a casual loading or a specific casual pay rate. Both parts need to be met.
The Commission lists several factors used to judge the real arrangement. These include whether the employer can choose to offer or withhold work and whether continuing work is likely in future. Another factor is whether permanent staff do the same kind of work. A regular pattern of work is also relevant.
This matters because a job title on a contract is not the whole story. The way the job actually runs from day to day carries real weight. If your hours have become steady and predictable, your arrangement may no longer match the definition. That is the point where the employee choice pathway may help.
Who can use the employee choice pathway
The Fair Work Ombudsman says a casual can give written notice after working for the employer for at least six months. If the employer is a small business, the period is 12 months. The employee must also believe they no longer meet the casual employee definition. Time worked before 26 August 2024 does not count in these periods.
For casuals already employed before that date, the start was staggered. Notices could be given from 26 February 2025 for most employers. For small business employers the date was 26 August 2025. The older conversion pathways stayed available for a short transition period.
How to give notice to your employer
The process starts with the employee, not the employer. Under the new rules the employer does not have to make an offer. You put your notice in writing and give it to your employer. The Fair Work Ombudsman publishes a free template for the notice and another for the employer’s reply.
There are some limits on when you can give notice. You cannot give one while a dispute about the pathway is still going. You also cannot give one if your employer refused a previous notice in the last six months. The same applies if a dispute about an earlier notice was resolved in that time.
What your employer has to do
Before replying, the employer must consult with you. The discussion covers full time or part time status, your hours and the start date. The employer then has 21 days from your notice to reply in writing. The reply must say whether the change is accepted or not.
If the change is accepted, the written reply sets out your new status, your new hours and the date it takes effect. The change usually starts from the first day of your first full pay period after the reply. You and your employer can agree on a different date. The Fair Work Ombudsman sets out each step of the employee choice pathway for casual employees in plain terms.
When an employer can say no
Refusing is not simply a matter of preference. An employer can only refuse a notice for limited reasons. The Fair Work Commission fact sheet on changes to casual employment lists the grounds as follows.
- The employee still meets the definition of a casual employee.
- There are fair and reasonable operational grounds for refusing.
- Accepting would mean the employer breaches a recruitment or selection process required by law.
If the answer is no, the employer must give the reasons in writing. Those reasons need to fit within the grounds above. Keep a copy of your notice and the reply together. They will matter if the disagreement goes further.
Protections against payback
The law also stops employers from working around the pathway. An employer cannot reduce or vary your hours to avoid its obligations. It cannot change your pattern of work or end your employment for that reason either. Adverse action protections cover giving the notice, getting a reply and taking part in a dispute.
These protections connect with other rights at work. Some workers worry about being watched after raising a concern, and our article on whether workplace surveillance is legal covers that topic. Rules about monitoring staff differ between states and territories. It helps to know where you stand before a problem grows.
Resolving a disagreement
A direct conversation is often the first step. If that does not work, the matter can go to the Fair Work Commission, the national workplace relations tribunal. The Commission usually starts with mediation or conciliation. If needed, it can arbitrate and make a legally binding decision.
For this pathway, the Commission can order that the employee stays casual or is treated as permanent. That gives both sides a clear outcome. It also means the paperwork from the earlier steps carries weight. Notes from the consultation and any emails are worth keeping.
A note for small business owners
If you run a small business, the 12 month period and the later start date apply to you. You still need to consult, reply in writing within 21 days and give reasons if you refuse. Employers must also give casual staff the Casual Employment Information Statement at set times during their employment. The Fair Work Ombudsman has the details of when it is due.
Employment rules are one part of running a business. Our guide to commercial law and its practice areas covers the wider legal side of trading. New owners may also want to read about protecting your new business from copyright infringements. Getting the basics right early saves trouble later.
The penalties side has also grown. New criminal underpayment laws started on 1 January 2025, and the Fair Work Ombudsman can refer suspected offences for possible prosecution. Our article on possible sentences for criminal offences outlines the kinds of outcomes courts can impose. Paying staff correctly is the simplest way to stay well clear of that.
Frequently asked questions
Does my employer have to offer me permanent work?
Under the employee choice pathway, the employer does not have to make an offer. The process starts when you give written notice. Your employer must then consult with you and reply within 21 days.
How long do I need to have worked as a casual?
You need at least six months with the employer. If the employer is a small business, you need 12 months. Time worked before 26 August 2024 is not counted.
Can I try again if my notice is refused?
You can, but not straight away. You cannot give a new notice within six months of a refusal. You also cannot give one while a dispute about the pathway is still going.
Where can I take a dispute?
Unresolved disputes can go to the Fair Work Commission. It usually tries mediation or conciliation first. It can also arbitrate and make a binding decision.
Workplace laws change, and some employers and employees are covered by state systems rather than the federal system, so rules can differ by state. This article is general information only and is not legal advice. For advice about your own situation, speak with a qualified lawyer or contact the Fair Work Ombudsman.
