Casual Employees
How does the treatment of casual employees differ from that of permanent employees in the workplace?
This information sheet will discuss the important factors to consider with regard to:
- Defining casual employment
- Unfair Dismissal
- Entitlements
- Tips for managing casual employees
Casual employment - a definition
There are many common misconceptions about what casual employment means. Strictly speaking, a casual employee is an employee who has varying hours of work with no expectation of ongoing work. Such an employee is said to enter into a new employment contract each time he or she accepts an offer of work, even if that offer is from the same employer.
At times, even though an employment relationship is classified by the parties involved as being casual in nature, it may be that a court would consider the employment to be permanent because the employee has an expectation of ongoing work. This commonly arises when the "casual" is employed for the same hours each and every week over a considerable period of time.
Employment relationships are complex and change as economic circumstances change. The courts will take into account a whole host of factors in determining the nature of an employment relationship. Employers need to approach this issue cautiously so that they avoid unexpected obligations to such employees.
Entitlements
With the increasing casualisation of labour, many in government and employee advocate groups are concerned that casual employees are missing out on entitlements to sick leave, annual leave and the benefits of permanence of employment. As courts and legislatures try to deal with these issues, new approaches to the problem of casual employment are constantly being developed.
In some instances, for example, where a court holds that a person should have been employed as a permanent employee rather than as a casual, the court will award back pay of annual leave, sick leave, and long service leave where appropriate. Such actions are usually brought by way of an "Application for Recovery of Moneys".
Where there is some doubt, it is sometimes in the best interests of both employer and employee to clarify matters by engaging employees on a permanent basis. Where casual employment is used, employers and employees should be careful to ensure that the law views the relationship in the same way as the parties do.
As was famously said in one case concerning casual employment, "the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck"!
Tips for managing casual employment
In relation to casual employees, employers should be careful to:
- avoid promising continuity of employment;
- avoid contracts or letters of appointment that appear to create permanency;
- vary shifts and rosters so as to avoid an expectation of regular and ongoing employment;
- consider whether the employment relationship is such that a court might consider the casual employment to be designed to avoid paying employee entitlements. In this case, the employer should discuss with the employee whether they would like to become a permanent employee.
For further advice on casual employment, please contact Ann Mary Edwards, Rod Berry or Teresa Dodaro on (02) 9411 4466.
