Employing Casual Workers in Australia
There is an element of fear and concern around the rules of casual employment and yes, there have been a number of legislative changes. However, once you understand the fundamentals, employing casual workers can be relatively straightforward.
Whether you're hiring a new casual employee or managing a long-term casual team member, setting clear expectations and adhering to current laws is key.
What Makes Employment “Casual”?
Casual employment is defined by the absence of a “firm advance commitment” to ongoing work. Here’s what you need to know:
Casual employees can accept or reject work as it’s offered.
There’s no guarantee of ongoing employment or regular hours.
A regular pattern of work does not, on its own, mean an employee is no longer casual.
When determining whether there is a firm advance commitment to ongoing work, the real substance, practical reality and true nature of the employment relationship must be considered.
If your arrangement doesn’t meet these criteria, it might not be genuine casual employment.
Clear Documentation is Key
To avoid confusion or disputes, formalise casual employment terms in writing. Your casual employment contracts should include:
Flexible working hours that may vary.
Pay rates, including the applicable casual loading or specific casual rate.
Application of penalty rates, allowances and overtime that apply.
Employee Choice Pathway
The Employee Choice Pathway allows eligible casual employees to notify their employer in writing that they want to change to permanent employment.
A casual employee may be eligible to make a notification if they:
have been employed for at least 6 months, or 12 months if employed by a small business; and
believe they no longer meet the requirements of the casual employee definition.
We recommend employers have a clear process in place requiring employees to make any request to change to permanent employment in writing. This creates a clear record of when the request was made and helps avoid disputes about whether an employee has previously asked to change their employment status.
Once an eligible employee gives written notice under the Employee Choice Pathway, the employer must consult with the employee and respond in writing within 21 days, either accepting or not accepting the change. If the employer does not accept the request, the written response must include the reasons for the decision.
What if the Employee Works Regular Hours but Wants to Remain Casual?
A casual employee may work regular and consistent hours and still remain casually employed. A regular pattern of work does not automatically mean an employee is permanent.
If an employee wants to remain casual, we recommend documenting the discussion and, where appropriate, confirming that permanent employment has been discussed or offered and that the employee has chosen to remain casual.
Employers should still regularly review the employment relationship to ensure the employee continues to meet the casual employee definition.
Don’t Fall for Common Myths
Here are some misconceptions about casual employment:
Myth: Casuals only get a 25% loading and nothing else.
Fact: Casual employees have a range of entitlements under the National Employment Standards and any applicable award or agreement, including paid family and domestic violence leave and certain unpaid leave entitlements.
Casual employees may also be entitled to long service leave. In Queensland, casual and regular part-time employees generally qualify for long service leave after the same period of continuous service as full-time employees.
Myth: Casuals can’t claim unfair dismissal.
Fact: Some casual employees may be eligible to make an unfair dismissal application where they meet the applicable eligibility requirements.
Best Practices for Managing Casual Employees
Start Strong: Define the casual nature of the role clearly in job adverts and contracts.
Stay Compliant: Provide the required Fair Work Information Statement and Casual Employment Information Statement to new hires*
Have a Clear Process: Require requests to change to permanent employment to be made in writing and ensure responses are provided within the required timeframe.
Review Regularly: Periodically evaluate your casual workforce to ensure the employment arrangements continue to meet the casual employee definition.
Document Everything: Maintain detailed records of employment agreements, changes, requests and communications.
*The Casual Employment Information Statement isn't only provided at commencement. It has to be provided again at prescribed points during employment, including after 12 months for small businesses and after 6 months, 12 months and then every 12 months for other employers.
What About Small Businesses?
Even small businesses with fewer than 15 employees must comply with casual employment laws, including the Employee Choice Pathway. For small business employers, a casual employee generally needs to have been employed for at least 12 months before they can make a notification under the pathway.
If you’re still unsure, contact HR Dynamics for tailored advice and support. Together, we can simplify your HR compliance and set your organisation up for success.
Ready to streamline your casual employment processes? Call us at 1800 877 747 or email hello@hrdynamics.com.au.
