What is the real definition of a casual employees? Are you sure your employees are legitimate casuals?
A recent decision from Fair Work Commission are worth reading when you are considering whether the employment of a new staff member is actually of a casual nature, or whether there is a more permanent relationship.
The Commissioner stated :
“Each set of facts in each case must be examined and that, if the number of hours worked is small and the gaps between days and times worked is long and irregular this means that there needs to be other evidence that the employment of a casual is regular and systematic. Conversely, if there is a clear pattern or a roster for the hours and days worked then this would be strong evidence of regular and systematic employment.”
In situations where there is not a clear pattern or roster of hours and days worked or a clear agreed arrangement between the employer and employee, then evidence of regular and systematic employment can be established where:
- The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and
- Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.
To be clear, a casual employee:
- usually works irregular hours (but can work regular hours)
- has no guaranteed hours of work
- doesn’t get paid sick or annual leave
- can end employment without notice, unless notice is required by a registered agreement, award or employment contract.
Just paying someone a casual rate of pay with a % loading does not automatically make them a casual employee. You need to look more broadly and see if there is evidence of regular and systematic employment.