Casual Employment – “It Ain’t Necessarily So”

There are three essential types of employees, Full-Time who works the 38 hour week, Part-Time works to a fixed schedule for less than the 38 hours and, Casual Employee. Where Modern Awards are concerned, the definition of “Casual Employee” is particularly vague with references like, “a casual employee is an employee engaged and paid as such”.
Casual employees are not entitled to employee benefits such as holiday or sick leave and accordingly are paid a loading of 25% on top of what a normal full-time equivalent employee would earn. The rather simplistic definition of what constitutes a casual employee belies an often confusing scenario which can result in the employer finding themselves in hot water.
Courts and Tribunals have defined a casual employee as essentially an employee who works irregular hours and has no reasonable expectation of systemic and ongoing work. It doesn’t matter therefore what you’ve written in the contract. If your casuals are working regular predictable hours with a reasonable expectation of the work being ongoing, then the employee has a solid case in arguing that they are not casual but, rather, full-time or part-time employees; with all the benefits associated with that definition. Conversely, if you were to find yourself in front of the tribunal defending your “casual’ classification, the court would look to factors such as the informality of the appointment, the uncertainty of continued future work and the irregularity of work hours for you to prove your case.
So what every employer should be looking out for is; a) are your casuals guaranteed a fixed amount of hours, b) are they on fixed roster, and c) do they have a level of certainty of future work with you? If your answer to these questions is yes, then you may have misclassified your employee.
Should you find yourself in this situation, talk to the staff member/s concerned and agree on a plan of action. Taking aggressive action like terminating the “casual” could also lead to unfair dismissal claims. Yes, casuals do have access to the unfair dismissal provisions. A recent ruling you Fair Work Australia, Ponce v DJT Management, found that the casual employee did have entitlement to lodge an unfair dismissal claim.

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