Definition of a casual employee not always obvious
CCIQ’s Employer Assistance team is regularly called on to explain for small business owners what is casual employment.
New CCIQ Senior EA advisor Damian Di Santo puts the spotlight on a recent case before the Fair Work Commission in which it had to determine whether an employee working for three years was a casual employed on a regular and systemic basis.
What is casual employment
Casual employment is a series of individual engagements. A casual engagement might be:
• week to week;
• day to day;
• shift to shift;
• hour to hour; or
• for any other agreed short period.
Features of true casual employment include:
• you can elect to offer employment on a particular day or days;
• when offered, the employee can elect to work;
• there is no certainty about the period over which employment will be offered;
• work is for short periods of time on an irregular or intermittent basis;
• the availability of work fluctuates from day to day, week to week, month to month;
• there is no firm advance commitment of the duration of the employee’s employment or the days or hours the employee will work;
• payment is a flat hourly rate, which includes a loading for various leave entitlements, including annual leave;
• the employee must regularly contact you and ask to work; and
• both you and the employee do not expect the employment to continue.
How to determine if a casual is a long-term casual employee
A long-term casual employee is a casual employee employed on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months.
There are three main characteristics of regular and systematic employment -
1. There is a clear and consistent process for the employee to get shifts in a particular period;
2. Casual engagements are offered at times the employer knows the employee is generally available and;
3. Casual shifts are offered regularly and the shifts are accepted regularly each week.
In NUW v Coles Group Supply Chain Pty Ltd (2011), the Fair Work Commission had to determine whether an employee working for three years was a casual employed on a regular and systematic basis.
• would often work a full week, although occasionally (but rarely) he would work 4-12 hours;
• worked every month of the year except for one period when there was no work offered but he was asked to hold himself ready to come back to work as soon as it became available, which he did;
• had a normal commencement time was 7am but on the rare occasions he had a 4hr shift, he commenced in the middle of the day;
• could often anticipate his roster; and
• worked all shifts offered.
The commission ruled the employee was a casual employed on a regular and systematic basis.
This was despite the fact the employee checked his roster for the next day prior to finishing work or rang to check his roster for the next day.
Casual employment arrangements while being useful to fill a temporary business need can also be somewhat complex when it comes to entitlements and rights in the workplace.
The above case law identifies how, at times, it can be difficult to navigate these issues.
Employers are encouraged to call CCIQ’s Employer Assistance Team on 1300 791 988 or firstname.lastname@example.org for guidance on casual employment engagements.
DISCLAIMER: This document is an information source only. Despite our best efforts, CCIQ makes no statements, representations or warranties about the accuracy or completeness of the information and disclaims responsibility for all liability for all loss or damage you might incur as a result of the information being inaccurate or incomplete in any way, and for any reason. The information contained in this document is not intended to be nor should it be relied upon as a substitute for legal or other professional advice.