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Casual employees – make sure you do it right.

Casual employees – make sure you do it right. (Last Updated On: August 9, 2016)

More and more businesses are relying on casual employees, mainly due to the flexibility it affords. However, when engaging casual employees, employers need to ensure they are aware of all their obligations under the Fair Work Act.

What does “casual” mean?

While the courts have generally been reluctant to provide a definition of a casual employee, they have concentrated on the manner in which casual employees are employed.

The Court, whilst hearing a case in 2010, suggested, “A characteristic of engagement on a casual basis is, in my opinion that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which the employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual.”

Entitlements of casual employees under the Fair Work Act

The Fair Work Act 2009 (the Act) provides casual employees with a range of entitlements including:

  • unpaid compassionate leave of 2 days per occasion
  • unpaid carers’ leave of 2 days per occasion

In addition, regular and systematic casual employees who have a reasonable expectation of continuing employment are entitled to:

  • unpaid parental leave of 12 months, provided the casual employees have been employed on a regular and systematic basis for at least 12 months
  • claim unfair dismissal once they have served the minimum employment period of 6 months, unless engaged by a small business with fewer than 15 employees in which case the minimum employment period is 12 months

What does “regular and systematic” mean?

Regular and systematic is not defined in the Act though courts and tribunals have tended to give this term a broad meaning. The Fair Work Commission made a number of observations about the meaning, including:

  • it is the employment itself that must be regular and systematic, as opposed to the hours/days being regular and systematic
  • variable start/finish times and variable hours from one week/month to the next will not prevent an employment relationship from being viewed as regular and systematic
  • working full-time hours over a lengthy period will point towards regular and systematic employment
  • a clear pattern or a roster for the hours/days worked, this would be strong evidence of regular and systematic employment
  • even if there is no pattern/roster, evidence of regular and systematic employment can be established where the employer regularly offers work and that work is accepted sufficiently often to deem it regular

Implications for employers

Employers need to take care when engaging employees on a casual basis, ensuring the employment relationship does not transform into a permanent one. When looking at employees employment status, or when employing new staff, consider:

  • if the employee will be working regular hours or to a regular roster for a defined period
  • if the employee has some level of certainty about what hours or days they will be working week to week
  • if the employee is required to notify the company if they are absent for a period

If the is answer yes, you may need to consider employment status’ and your adherence to your employment obligations.

Employsure can help determine your obligations when it comes to employing staff. We can advise on the correct entitlements for any staff, provide compliant contracts and assist if you find yourself in any type of employment dispute. Call 1300 651 415 today.

 

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