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COMMUNITY Managing casual workers in your
MANAGEMENT community organisation
ADVISORY
PROJECT INC When is a “casual” not a casual?
The increasing casualisation of home early if not needed by their
Key Points
Australia’s workforce, where one employer. They are free to decline an
Many workers wrongly categorised as in four workers is now casual, offer of work but, in practice, it can be
casuals when they are permanent. carries considerable risks for ill- difficult to refuse hours if they are
informed employers. relying on their employer to offer work
Permanent “casuals” may be legally in the future. Casuals are not entitled
entitled to paid leave, severance pay. The difficulty in determining if a to paid annual leave, public holidays
worker is a casual or permanent or sick leave but are paid a higher
Some awards entitle casuals to penalty
employee is that legal definitions hourly rate, in the form of a loading,
rates, parental leave, long service of casual employment vary to make up for this.
leave. according to whether they are
covered by an award or enterprise In contrast, where so-called casuals
Law protects “permanent” casuals from
agreement, by an Act or, in the are in fact permanent employees,
unfair dismissal.
absence of such coverage, by the they should enjoy all the usual
common law — and consequently entitlements of permanent status.
their terms and conditions can
vary considerably. Informality, uncertainty,
irregularity
Many employers classify their In its decision in AMACSU v Auscript
workers as casual, even though they (1998) FB of AIRC (MacBean SDP,
are not employed on a short-term, Duncan DP, Jones C) (P9271)
irregular or seasonal basis — 60% of 5/3/98, the full bench of the Australian
full-time workers categorised as Industrial Relations Commission
“casual” have been with the one (AIRC) said that “an employee may
employer for more than a year. As the have the title „casual‟ attached to their
law generally recognises such so- classification but, in reality, they are
called casuals as permanent employed under policies and
employees, their employers may be procedures that are anything but
found liable for their leave, severance casual”. The full bench described two
pay and other entitlements. classes of employees as casuals, one
characterised by the “informality,
Common law definition of “casual” uncertainty and irregularity” of their
engagement and the other working “a
In general, the courts have regular pattern of hours with an
determined that the essence of ongoing employment relationship”.
casual work is that, unlike the case of
permanent or fixed-term contract The employees in question, court
workers, there is no entitlement to reporters, had the following
ongoing regular employment, or characteristics:
certainty in the days, hours or shifts
worked. Casuals receive a different they were specifically engaged
minimum rate of pay and do not enjoy as casual employees;
some of the entitlements of
permanent and fixed-term they had to be available at least
employees. They do not have the three days a week and seven
right to ongoing work. Their shifts can hours a day;
be cancelled or they can be sent
Managing casual workers -1- October 2004
Managing casual workers in your community organisation
a weekly roster was prepared tests to determine whether an Awards that provide permanency
allocating work to each ongoing relationship existed included: A drive by the unions to achieve
employee; permanent status for long-term
the number of hours worked each casuals achieved success in
under the award, the employer week; December 2000 when the full bench
was required to pay them for a of the AIRC decided to vary the
minimum of three-and-a-half whether a roster system is award covering metal industry
hours per day; published in advance; workers. The decision allowed
casuals of six months‟ standing or
every six months a register of whether the employment pattern more to seek to convert to permanent
available employees was issued, is regular; status. The employer may not
when casuals had to apply for a unreasonably refuse.
new position on the register; and whether the employee has a
mutual expectation of continuity A similar decision was made in South
many had served for lengthy of employment; Australia in 2002, when the Clerks
periods. (South Australia) Award was varied,
whether the employer requires
but in that case it applied to casual
The full bench concluded that they notice before an employee is
employees employed on a regular
were “not true casuals” and that their absent or on leave;
and systematic basis for at least 12
employment had all the features of months. Again, employers cannot
permanent part-time employment. whether the employee has a
unreasonably refuse such an
Consequently, the employees were reasonable expectation that work
application.
awarded severance payments. The will be available; and
decision emphasised that a “genuine And, in a test case currently
casual” is not one where there is a whether the employee works to
underway in New South Wales, the
“regular pattern of hours” and where consistent starting and finishing
NSW Labor Council is asking the
there is “an ongoing employment times.
NSWIRC to establish a standard
relationship”. clause to be inserted into state
Casuals in awards and agreements awards, conferring permanent status
In Ransom v Arthur Anderson (1999), on employees after they have worked
AIRC (Whelan C) (R4178) 23/4/99, it A casual employee whose minimum regularly with the one employer for
was held that a casual filing clerk who terms and conditions of employment more than six months.
had worked for the same employer are specified by an award or
for two years, originally for two days enterprise agreement may enjoy The federal Labor party has
and during the latter part for four or better conditions than those available announced that, if it wins
five days, “presented for work on a for non-award casual employees, as government, it will legislate to ensure
regular basis as predetermined”. She outlined above. For example, they the AIRC takes into account job
could not be described as a “casual may be entitled to overtime penalty security and the need to prevent the
employee” but as “permanent part- rates if required to work outside of the “misuse” of casual employment.
time” or “virtually full-time”. normal span of hours. Long-term Award provisions would be required
casuals may be entitled to parental to allow casuals employed for set
Signs of casual or permanent leave, or long service leave after times (varying according to industry)
Case law has established a number completing a period of unbroken the option of applying for conversion,
of indicators that should be applied in service with their employer for the with employers not able to refuse
determining whether a casual‟s qualifying period. They may have the unreasonably.
employment has transformed into a right to convert to permanent
permanent employment relationship. employment after a specified period
In the decision Licensed Clubs of employment (as discussed above) Casuals and unfair dismissal
Association of Victoria v Higgins or their award may set out a minimum
Acts of Parliament may provide a
(1988) IRC in full session (Marsh DP, number of hours for which they can
different definition of what is a casual.
Eggington and Conway CC) be rostered to work.
(88/1562), (D88/0433) 11/11/88, the
Managing casual workers -2- October 2010
Managing casual workers in your community organisation
For example, under sec 170CBA of was that she did not complete at least covered by workers
the Workplace Relations Act 1996 12 months of service. However, the compensation legislation, for
(Cth) certain employees are barred full bench held that, although compensation if injured at work;
from claiming unfair dismissal, excluded from the unfair termination
including “a casual employee provisions, she could still make an protected by occupational health
engaged for a short period”. The application for a remedy for unlawful and safety laws;
section provides that a casual termination. She did, and was
employee is taken to be engaged for successful in her claim for unlawful protected by equal opportunity
a short period unless “engaged by a termination for discrimination. and anti-discrimination laws; and
particular employer on a regular and
systematic basis for a sequence of Legislation in most states provides entitled to join a union.
periods of employment during a similar provisions in relation to
period of at least 12 months” and, but casuals and unfair dismissals. The
Tips for recruiting casuals
for the termination of employment, main difference among the various
the employee had “a reasonable states‟ legislations is with respect to When recruiting casual employees
expectation of continuing employment the required minimum time a casual many organisations resort to a
by the employer”. must have been employed before somewhat “casual” approach, which
being able to claim relief. In New contrasts starkly with the process
The meaning of these provisions was South Wales, for example, casuals used for permanent employees.
clarified in June 2004 by a full bench are afforded protection after only six When offering casual employment it
of the AIRC in Nightingale and Little months‟ service. is important to note the following
Legends Childcare FB of AIRC points:
(Giudice J, Ives DP, Grainger C)
Other legislation
(PR948229) 23/6/04. The full bench advise the employee that the
said that it is now clear that an Other legislation ensures that casuals employment is on a casual basis;
employee with regular and systematic are treated the same as permanent
engagements and a reasonable employees with regard to certain confirm the employee‟s “casual”
expectation of continuing employment entitlements. status at regular intervals;
can still be a casual employee
engaged for a short period, as For example, in New South Wales draw to the employee‟s attention
specified in the Act. and Queensland regular or long-term the fact that casual employment
casuals of 12 months‟ standing have is day-to-day and, particularly,
The applicant in Nightingale was parental leave entitlements. Such the absence of notice
initially employed by a childcare casuals also receive carer‟s leave in requirements;
centre to work as a casual on Queensland.
Mondays, from 9 am to 5.30 pm. After where employment is irregular (ie
several weeks she began working Throughout Australia, it is compulsory not a standard arrangement,
Monday to Friday. Her employment that employers make superannuation such as one night per week),
was terminated 10 months after she contributions into an approved advise the employee that there is
had started because, claimed the superannuation fund on behalf of all no further work available at
employer, she refused repeated employees, whether casual or present;
offers of permanent employment. permanent, if they earn over $450
Throughout her employment she was gross per month. (An employer does it is possible to indicate when
paid casual rates. not have to make contributions for future employment may become
employees under 18 years of age available, or to invite the
It was clear that, but for the who work less than 30 hours per employee to apply for further
termination of her employment, the week.) employment at a specified later
applicant would have had a date: it is not advisable to tell the
reasonable expectation of continuing As well, all casuals, like permanent employee that work is definitely
employment. And she had employees, are: available on a specified date;
established a regular and systematic
pattern of employment. The problem when the employee has reached
“regular casual” status, it is
Managing casual workers -3- October 2010
Managing casual workers in your community organisation
advisable to inform them of their
right to leave entitlements: this
may save confusion and possible
ill feeling at a later date;
employers should note that there
are implications for termination of
employment if the casual
employee works a regular pattern
of hours with a reasonable
expectation of continuing
employment for a specified
period, say six or 12 months; and
check any relevant awards or
agreements for casuals‟
entitlements in your industry.
This document is subject to copyright
and may not be used or reproduced
without the prior written consent of
the copyright owner.
For more details, contact:
DAVID BEDDOE
B.Com CPA GradDipLaw LL.M/LP
SOLICITOR AND BARRISTER
CERTIFIED PRACTISING
ACCOUNTANT
At
Community Management Advisory
Project Inc.
Telephone: 02 4956 1112
Regular Mail: PO Box 38,
BOOLAROO NSW 2284
Email: cmapemnc@bigpond.com
Managing casual workers -4- October 2010
