Table of Contents
- What is a Casual Employee?
- What is a Long-Term Casual Employee?
- What Rights Do Long-Term Casuals Have?
- The Right to Be Offered Permanent Employment
- The Right to Request Flexible Working Arrangements
- The Right to Take Unpaid Parental Leave
- The Right to Take Paid Long Service Leave
- What Happens if I Do Not Comply?
- Key Takeaways
- Frequently Asked Questions
As an employer, the way you classify your workers and their role within your business will create certain legal rights and obligations. For example, your full-time employees will have the benefit of paid sick leave, unlike casual workers. Recently, the Fair Work Commission has cracked down on employers concerning casual employees, especially long-term casual employees. To help, this article will explore:
- what constitutes a long-term casual employee;
- the rights of a long-term casual employee; and
- the consequences of non-compliance.
What is a Casual Employee?
A casual employee is a person who:
- is offered employment with no firm advance commitment of regular work; and
- accepts the offer of employment on that basis.
It is important to be very clear at the beginning of a casual worker’s employment that there is no commitment to ongoing work.
What is a Long-Term Casual Employee?
A long-term casual employee is a casual employee who has worked regularly and systematically for you for over a 12-month period and is reasonably expected to continue this arrangement.
Continue reading this article below the formWhat Rights Do Long-Term Casuals Have?
The following section explores the rights of long-term casual employees.
The Right to Be Offered Permanent Employment
Under the National Employment Standards (NES), long-term casual employees need to be offered the option to convert to permanent (full-time or part-time) employment. This process is known as ‘casual conversion’. Notably, it is not an automatic conversion after 12 months. Your business must offer this option to the relevant employee, or else the employee can request it. Likewise, the employee must accept the conversion within the relevant timeframes.
To fulfil your obligations, employers (except small business employers) must make an offer of casual conversion in writing within 21 days after the employee’s 12-month anniversary if the employee has:
- been in your business for at least 12 months; and
- worked a regular pattern of hours on an ongoing basis for at least the last six months of that period, which, without significant adjustment, they could continue to work as either a permanent full-time or part-time employee.
What if My Employee Does Not Respond?
Employees must respond to the offer in writing within 21 days of receipt. If you do not hear back from your employee within 21 days, you can assume they have declined the offer.
What if I Cannot Offer Permanent Employment?
Your business might not be able to offer casual conversion to a casual employee. In that case, you need to write to the employee within 21 days after their 12-month anniversary, explaining why you will not be making a casual conversion offer. You will need to explain your business’ reasonable grounds for not making an offer.
The Right to Request Flexible Working Arrangements
Long-term casual employees can request flexible working arrangements. The request must be in writing and state what they want to change and why.
Flexible working arrangements include:
- changing hours of work (e.g. working less hours or changing the start or finish times);
- changing patterns of work (e.g. working ‘split shifts’ or job sharing);
- changing the place of work (e.g. working from home).
You should respond within 21 business days of receiving the request. If you refuse the request, you must include the reasons for the refusal in your response. Ultimately, you must accept the request unless you have reasonable grounds to refuse.
The Right to Take Unpaid Parental Leave
As with permanent employees, long-term casuals can take unpaid parental leave when they or their partner are to give birth or adopt a child.
Long-term casual employees can take up to 12 months of unpaid parental leave. They also have the option to take an additional 12 months of unpaid parental leave (up to 24 months in total). An eligible employee planning to take unpaid parental leave should give you at least 10 weeks’ written notice. However, if the employee is planning to take an additional 12 months of unpaid leave, they are required to only give 4 weeks’ written notice.
The Right to Take Paid Long Service Leave
Each state and territory has its own Long Service Leave (LSL) legislation. In some states and territories, long-serving casuals are eligible for LSL.
What Happens if I Do Not Comply?
If you do not comply with the rights of a long-term employee, you will be in breach of the Fair Work Act 2009 (Cth) (FW Act) and significant penalties will apply.
For example, casual conversion is part of the NES and companies that breach the NES could face penalties over $66,000, while individuals could face $13,000 in penalties. It is not good enough to say that you were not aware of the long-term casual’s relevant entitlements. As an employer, it is your responsibility to understand and keep up to date with your employment obligations.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Key Takeaways
The law has changed to give casuals, especially long-term casuals, additional rights and protections. The responsibility is on employers to be aware of their obligations under the FW Act and ensure that they give employees their relevant entitlements.
If you need assistance understanding the rights of long-term casual employees, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
A casual employee is someone who is offered employment with no firm advance commitment to regular work and accepts the offer of employment on that basis.
A long-term casual employee is a casual employee who has worked regularly and systematically for an employer over 12 months, and they are reasonably expected to continue this arrangement.
Long-term casual employees have the right to be offered permanent employment, request flexible working arrangements, and take unpaid parental leave. Additionally, in some states, long-term casuals can take paid long service leave.
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