Female worker putting vegetable box in shelf

Changes to casual employment – what you need to know

In the past few months, there has been a flurry of activity, discussion and legal changes in relation to casual employees.  This article will tell you what you need to know. 

Traditional definition of casual employment re-asserted

The recent case of WorkPac Pty Ltd v Skene [2018] FCAFC 131  (see our recent article: When is a ‘casual’ worker not actually classed as a casual?) saw the Full Bench of the Federal Court overturning decisions of the Fair Work Commission, when it held that a “casual” employee was an employee who did not have a regular pattern of work, or a reasonable expectation of ongoing work.

This confirmed the commonly held view of what a “casual” employee is, and was in contrast to the definition of a casual employee proposed by the employer in the case (and previously endorsed by the Fair Work Commission), which in essence was that if an employer classified an employee as “casual” (whether in writing or not), and paid the employee by the hour at a rate inclusive of the casual loading, then that was sufficient to make the employee a casual, regardless of the actual hours of work which they were performing.

What you need to know: If you have “casual” employees working on a regular and systematic basis, they may in fact actually be permanent employees entitled to annual leave and other entitlements.  This means you may have a substantial back pay issue.

Casual conversion

Another substantial change in the area of casual employment was the introduction of a clause, in Modern Awards which have not had such a clause, which gives casual employees the right to elect to change their employment to part time or full time.

Casual employees who are covered by a Modern Award and who have worked at least 12 months (6 months in the case of some Awards) on a regular and systematic basis (i.e. fairly regular and predicable hours, much like a part-time or full-time employee) are now entitled to elect to be employed as a part time or full time employee, rather than a casual.  Businesses are able to refuse that request, if there are reasonable business grounds, and in particular if the work required does not fit into the mould of part- or full-time work.

What you need to know: You must provide all current casual staff who have been employed for at least 12 months, with notice of their right to elect to convert to permanent employment, by 1 January 2019.

For new casual staff, you must give them notice within the first 12 months of employment.

If you have any queries relating to the information in this piece, or would like to speak with a lawyer in Coleman Greig’s Employment Law team, please don’t hesitate to get in touch.

Share:

Send an enquiry

Any personal information you provide is collected pursuant to our Privacy Policy.

Categories
Archives
Author

More posts

roles in the strata scheme
Understanding roles in the strata scheme

A strata scheme is a building or group of buildings that have been divided into lots which can be apartments, villas, offices, units or townhouses. This will be articulated in the strata plan.

Airbnb home
Can I put my home on Airbnb?

Airbnb is a form of short-term rental accommodation. To add your property to Airbnb in NSW, you are required to meet several laws and regulations governing short-term rentals.

liquidators required to seek approval
When are liquidators required to seek approval to retain legal counsel?

When does a liquidator (or the company he or she is appointed to) need court, creditor, or committee approval to validly retain a solicitor to act in a liquidation matter which is likely to extend for longer than three months?  The answer to this question has only recently been settled.

Proposed changes to building
Proposed changes to building and construction law in NSW

The Building Bill 2022 (the Bill) is the key avenue through which the NSW Government has proposed to reshape the culture of the building and construction industry by eliminating poor performance and improving the quality of building statewide.

Dismiss an employee
Can you dismiss an employee who fails to return to the office?

Slowly but surely, most employers are requiring employees to return to the office for at least a portion of their working week. Some employers continue to struggle with employees resistant to returning to the office or those who have an expectation that they can continue to work from home whenever it suits them.

Phoenixing in Construction
New powers to combat phoenixing in construction

The rise of phoenixing in the building and construction industry in Australia in recent years has proved a significant challenge to regulators. Mismanagement of time or cashflow can quickly propel businesses into insolvency.

© 2024 Coleman Greig Lawyers  |  Sitemap  |  Liability limited by a scheme approved under Professional Standards Legislation. ABN 73 125 176 230