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.
