The main difference between permanent employees and casual employees is that they have an advance commitment to ongoing employment, can expect to work regular hours each week, are entitled to paid leave and must give or receive notice to end the employment. But what is a casual employee?
The Fair Work Act 2009 states that a person is a casual employee if:-
- they are offered a job;
- the offer does not include a firm advance commitment that the work will continue indefinitely with an agreed pattern of work; and
- they accept the offer knowing that there is no firm advance commitment and become an employee.
What does firm advance Commitment mean?
There are just four (4) ways to work out if an employer’s offer doesn’t include a firm advance commitment (and you don’t need all four) are as follows:-
- 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”; and
- 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.
The above are to be weighed up in deciding whether overall the employer was or was not intending to make a firm advance of commitment to you.
Can a casual employee become a permanent employee?
Some employees under the National Employment Standards have the right to become permanent (full or part-time) employees (“casual conversion”). For example, if an employee has been employed for over 12 months has been working a regular pattern of hours on an ongoing basis of at least the past 6 months and could continue as such without significant changes.
It is a complex area of law and we can help you decipher your individual case as needed but we note that small businesses (that employee less than 15 people) do not have to offer casual conversion but an employee can, in certain circumstances, request it.
A warning to employers
There is a saying “if it walks like a duck and quacks like a duck, it’s a duck” and this is applicable here. Just because you call an employee a casual employee doesn’t mean they are one in the eyes of the law – they may in fact be a permanent employee and have additional rights, including leave notice entitlements, ability to make an unfair dismissal application as well as retrospective claims for permanent employee entitlements.
Casual employees can bring an unfair dismissal claim where:
- they have been employed on a regular and systematic basis for a period of at least six months; and
- there is an expectation of ongoing employment.
As you can see it becomes a grey area when an employee has been working regular and systematic hours over an extended period.
To determine whether a person is a casual or permanent employee the courts will examine closely the reality of the relationship to determine the true nature of the employment status and not just the label. Simply calling an employee a casual when in fact they are not, will not prevent the courts from determining otherwise.
Our employment law team at Wakefield Vogrig and Boote Lawyers are ready to assist you should you require advice in relation to employment law issues – whether you are an employee or employer. Please contact our reception to arrange an appointment with one of our experienced lawyers or book an appointment online.
Authors:
Sarah Coppini – Lawyer
Disclaimer: The information in this post is general in nature. This does not constitute legal advice and should not be relied on as such. Please contact one of our Lawyers if you are seeking advice about a specific legal matter.
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