What Rights Do Casual Workers Have?

As an employer, you would know that running a successful business involves hiring capable and dependable staff. You can engage workers through various working relationships, such as permanent, part-time and casual contracts. It is important to understand the differences between a casual employee and permanent employee to abide by your legal obligations. This article will discuss key considerations when engaging casual employees.

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Who is a Casual Employee?

The Fair Work Act 2009 (Cth) (the Act) defines a ‘casual employee’ as a person who:

• is offered employment with no firm advance commitment of regular work; and
• accepts the offer of employment on that basis.

To determine whether an offer of employment makes no firm advance commitment of regular work, consider the following:

• the employee can elect to accept or reject the work that is offered; 
• the employee works as required according to the needs of the employer; 
• employment is described as casual; and 
• the employee is entitled to a casual loading.

Alternatively, if you ask an employee to work consistently week on week, they are typically not a casual employee. Consistent work can look like an employee working the same days during the same hours. 

The line between casual and part-time is hazy at the best of times, emphasising the importance of having a clear employment contract. Notably, engaging an employment lawyer to help you can limit confusion between you and your employees.

Considerations When Hiring Casual Workers

First, all employers should be aware that employing someone on a casual basis does not prevent someone from claiming unfair dismissal. As the law stands, casuals are within their rights to claim unfair dismissal, provided they:

• were employed on a regular basis; and 
• had a reasonable expectation of continuing employment on a regular and systematic basis.

As such, similar to permanent employees, fairness principles will apply to casuals. It follows that employers must take the same precaution when firing a casual employee who is protected from unfair dismissal as they would if they were dealing with a permanent employee. Also, casual workers can claim discrimination from their employer, despite the temporary nature of casual employment.

Second, while casuals do not enjoy the same leave entitlements as permanent employees, they still benefit from some minimum leave rights. They do not receive any paid annual leave, personal or compassionate leave, though they can receive the following unpaid leave:

• carer’s leave;
• compassionate leave;
• family and domestic violence leave;
• community service leave; and
• parental leave (provided they have a minimum of one-year employment on a regular basis and have a reasonable belief that their employment will continue on a regular and systematic basis). 

Finally, employers must comply with minimum wage requirements for casual employees that are either in line with the national minimum wage or the minimum rate of pay under the relevant modern award or enterprise agreement.

Casual Conversion

Under the Act, casual employees have the right to be offered permanent part-time or permanent full-time employment if they fit the following criteria:

• they have been employed in your business for at least 12 months; and
• they have worked a regular pattern of hours on an ongoing basis for at least the last six months of that period, which they could continue without significant adjustment as a full-time or part-time employee.

However, casual employees that work for a small business (i.e. 14 or fewer employees) do not receive this entitlement. While your casual workers can request to convert to permanent full-time or part-time work, you are under no obligation to offer it. 

If your business is unable to offer casual conversion to a casual employee that fits the above criteria, you must write to the employee explaining why you cannot make an offer. A valid reason for not making this offer might be based on reasonable business grounds, such as: 

• you believe the position will not exist in the next 12 months; or
• the employee’s work schedule will significantly change in a way that cannot be accommodated.

If you are a small business, an employee can make this request from their 12-month anniversary. 

Key Takeaways

There are a few variables to consider when deciding whether an employee should be a casual or permanent employee, including regularity of work and remuneration. As an employer, it is important to understand the rights of a casual employee so that you can properly comply with your legal obligations.

If you need assistance engaging a casual employee, 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.

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