The Facts About Casual Employment
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The ins and outs of casual employment can often be difficult to make sense of, especially due to changes under the Fair Work Act made not too long ago. If you are a business owner, you need to be aware of the definition of ‘casual employment’. In March 2021, Fair Work Act 2009 was amended to include a statutory definition of ‘casual employment’ as:
“..an employee who has no firm advance commitment from the employer as to the duration of the employee’s employment or when the employee works and provides no reciprocal commitment to the employer.”
For an employee to be found as anything “other than” a casual, there must exist a “firm advance commitment” to continuing work which is “unqualified by indicia of irregularity, such as uncertainty, discontinuity, intermittency and unpredictability”.
These changes removed any uncertainty that casuals could be deemed as permanent employees based on their working arrangements with an employer.
Prior to offering a potential employee a casual contract of employment, the following factors should be assessed for each new casual appointment to determine whether an employer’s offer doesn’t include a firm advance commitment. They are:
whether the employer can choose to offer the employee work and it’s the employee’s choice to work or not
whether the employee will be offered work when the business needs them to work
if the employment is described as casual
if the employee is paid a casual loading (a higher pay rate for being a casual employee), or a specific pay rate for casual employees.
How does casual employment differ from full-time or part-time work?
Full-time and part-time employees have an advance commitment to ongoing employment. They can expect to work regular hours each week. They are also entitled to paid leave and must give or receive notice to end the employment.
Just having a regular pattern of work doesn’t mean an employee is permanent (full-time or part-time).
What entitlements do casual employees get?
Under the National Employment Standards (the NES), casual employees are entitled to:
access a pathway to become a permanent employee
2 days unpaid carer's leave and 2 days unpaid compassionate leave per occasion
5 days unpaid family and domestic violence leave (in a 12-month period)
unpaid community service leave
Casual employees can request flexible working arrangements and take unpaid parental leave if:
they have been employed by their employer as a casual employee on a regular and systematic basis over at least 12 months
they reasonably expect to continue being employed by the employer on a regular and systematic basis.
Under awards and agreements, casual employees are also paid a casual loading (a higher pay rate for being a casual employee), or a specific pay rate for being a casual employee.
Casuals don't get paid days off, notice of termination or redundancy pay, even if they work regularly for a long time. In some states and territories long serving casuals are eligible for long service leave.
What is Casual Conversion?
The NES now include an entitlement for casual employees to become full-time or part-time (permanent) in some circumstances. This is also known as 'casual conversion'.
Casual employees can become permanent by their employer offering casual conversion or by making a request to their employer for casual conversion. There are eligibility requirements and exceptions that apply and processes that need to be followed under Fair Work guidelines.
However, small business employers don’t need to offer casual conversion to their casual employees. Different rules also apply for offers of casual conversion to existing casuals employed immediately before 27 March 2021 who aren’t employed by a small business.
Most awards also have a process for casual conversion. Some enterprise agreements and other registered agreements have similar processes.
Casual Employment Information Statement
The Fair Work Ombudsman has published an information statement which contains the following information:
an employer offer for casual conversion must generally be made to certain casual employees within 21 days after the employee has completed 12 months of employment
an employer can decide not to make an offer for casual conversion if there are reasonable grounds to do so, but the employer must notify the employee of these grounds
certain casual employees will also have a residual right to request casual conversion
casual conversion entitlements of casual employees employed by small business employers and
the Fair Work Commission may deal with disputes about the operation of that division.
Employers now need to give every new casual employee a Casual Employment Information Statement before, or as soon as possible after, they start their new job.