Is your Casual Employee Casual?

Typing on Laptop

Recent decisions have created uncertainty regarding leave entitlements within the operation of the Fair Work Act (FWA) and National Employment Standards (NES). 

Doubt now exists as to who is exactly a casual employee under the relevant legislation notwithstanding the general notion of such engagement.  It may not fall into the common industrial meaning which we have followed over the years. 

The area is now very confused and it carries very important consequences for employers notwithstanding that payment to a  “casual” generally includes significant pay loading to cover the disadvantages usually associated with causal employment and the forfeiture of annual leave benefits.  In view of the current uncertainty a casual employee may be entitled to annual leave and the employer may have potential risks regarding unfair dismissal etc. 

There may be leave entitlement issues (and possibly other issues) arising if a worker works on a regular predictable continuous service (eg fly in, fly out, possibly extend to say 7 days on, 7 days off over a lengthy period) or a teacher or a bar attendant whose work pattern includes natural commitment/ predictable hours/ lack of flexiblility etc.

There is no direction from the Court decisions in consideration of the FWA and NES regarding definitive and minimum standards that override any other conditions of the employment eg casuals contracts etc where conditions are considered to be inferior to NES guidelines. 

Whilst there may be a need for legislative change to clarify casuals entitlements it may not be forthcoming and so it is important for employers to review their agreements and/or be warned of the possible consequences of their existing arrangements.

Should you have further questions regarding this area of law, please contact Ben Farmer

Leon McEvoy

October 2018