Death of the Casual Employee

Do recent legislation changes signal the end of casual employee arrangements?  

If you are in business, hiring casual staff can provide increased flexibility in your workplace.  However, it might not always be possible to treat casual employees as “casual”.  

So, when is casual employee really a casual employee? 

This this article, John Gallagher from Argon Law talks about how a recent Full Federal Court decision might affect you and what you should be aware of before engaging casual staff. 

Generally speaking, the term ‘casual’ employee has been interpreted to mean an employee who works only on demand by the employer and on a shift-by-shift basis.  

A casual employee has no guaranteed hours of work; usually works irregular hours; doesn’t get paid sick or annual leave and can, in most cases, end the employment without notice.

So when is this not the case? 

The recent decision of WorkPac Pty Ltd v Skene provides a good example.  In that case, the Federal Court found that a fly-in fly-out worker engaged as a casual through a labour hire company, was not in fact a casual employee and was therefore entitled to annual leave. In making its decision, the Court looked to things like the predictability of shifts, the continuous nature of his engagement and the length of employment. It also imposed penalties on the employer. 

Employing and paying an employee as a casual employee does not, in itself, mean the employee is actually a casual employee. You need to look at multiple factors before deciding that they should be classified as casual. The case is likely to have much broader implications for all employers who engage casuals. 

Adding to the increased uncertainty around casual employees, from 1 October 2018, employers must also ensure compliance with the new casual conversion clause which has been inserted into more than 80 modern employment awards. That clause allows some casual employees to give notice to their employer that they are converting to permanent.

If you would like more information about casual employees or what is required to comply with the new casual conversion clause, please give us a call. 

Argon Law is a commercial law firm based in Maroochydore and we look foward to assisting you in your legal requirements.

Related area of practice
Employment Law