Is a Casual Employee Really Casual?

Recent changes made by the Fair Work Commission and the ever-evolving legal landscape makes it hard to keep up with employer rights and duties under employment law. This is particularly true for casual employment as there are so many factors to be considered.

Most people associate casual employment as an employee having no firm advance commitment as to the duration of employment or the days (or hours) worked, no entitlements to paid leave entitlements (casual leave loading applies instead) and no requirement to provide notice for termination by either the employee or employer. 

But it’s not that straight forward. There are so many other factors that must be considered with respect to casual employment, including: 

  1. how are wages paid? Hourly rates are more consistent with casual employment than are weekly wages;
  2. how long has the employee been employed? The longer the length of service the less likely the employee is a casual employee;
  3. how many hours does the employee work per week? The more numerous the hours worked the less likely the employee is a casual employee;
  4. does the employee have a consistent starting and finishing time? The more consistent the hours the less likely the employee is a casual employee;
  5. does the employee work based on a roster published in advance? The more regular and planned are the hours, the less likely the employee is a casual employee;
  6. is there a reasonable mutual expectation of ongoing employment? If so, the less likely the employee is a casual employee;
  7. does the employee need to provide notice before being absent or on leave? If so, the less likely the employee is a casual employee;
  8. has the employee been informed of the casual nature of the employment? If not, the less likely the employee is a casual employee.

It’s also important to note that:

  1. a casual employee may have a right to access unfair dismissal provisions if their casual employment is regular and systematic and there is a reasonable expectation of ongoing employment;
  2. a regular casual employee can request to become permanent after a period of 12 months under most modern awards. An employer may only refuse the request in limited circumstances.

Key takeaways:

  1. casual employment includes irregular work patterns, unpredictability and intermittency;
  2. a casual employee has a right to request permanent employment after 12 months;

It’s important to get legal advice about your rights and obligations as an employee and employer. At Cohen Legal we can assist both employees and employers when navigating the rabbit hole of employment law by:

  1. preparing and reviewing employment contracts and policies;
  2. providing advice in relation to employment matters, such as applicable awards, employment entitlements and other obligations under the Fair Work Act, performance management, disciplinary processes and workplace complaints as well as terminations;
  3. assisting with employment law disputes, including restraint matters, unfair dismissal and adverse action claims and claims for breach of contract.
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