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Casual Employees – an update for Employers dealing with, and hiring, casual employees - Your simply strategic legal partner.
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Casual Employees – an update for Employers dealing with, and hiring, casual employees

Author: Robert Lamb
2 min read
31 May 2022
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Key Takeaways

  • A new Federal Court case is providing Employers with more certainty around casual employee laws.
  • The way in which offers of employment and employment agreements are drafted and accepted is of particular relevance and significant importance following the court findings.
  • The Amended Fair Work Act has a mechanism requiring Employers to offer casual employees the choice to become permanent if they've been employed for 12 months and have worked regular and systematic patterns in the last six months.
  • Employers who use fixed term contracts will need to review their contract practices in preparation for the new rules that take effect on 6 December 2023.

The Full Court of The Federal Court has provided significantly more certainty to Employers when hiring or dealing with casual employees, including casual admin, support and nursing staff, in a case delivered on 10 May 2022. We initially discussed this issue in an earlier blog here.

Of particular note in this most recent case, the Full Court confirmed that in determining whether the employee is, as a matter of law, a casual employee close attention will be focused upon:

  1. The terms of the offer that is made by an employer;
  2. Whether that offer is accepted; and
  3. Whether the employer “makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work”. In resolving the third issue, regard must be had to the four considerations at s 15A(2) of the Act.

Further considerations are:

  1. A “regular pattern of hours does not of itself indicate a firm advance commitment” of the statutory character; and
  2. Determination of the question of whether a person is a casual employee “is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party”.

The written offer and agreement are of primary importance and may resolve any potential arguments.  It is imperative therefore that a well drafted employment offer and agreement is given to any casual employment candidate and existing casual employee.

Employers must also continually monitor their casual employees. The Amended Fair Work Act contains a mechanism requiring Employers to offer casual employees the choice to become permanent if they’ve been employed for 12 months and have worked regular and systematic patterns in the last six months.

Further findings are that, in most circumstances, casual employees are entitled to:

  1. Superannuation;
  2. Pro-rata long service leave after 10 years; and
  3. Unpaid parental leave.

There is now more certainty around the ways in which a casual employee’s circumstances require an Employer’s thought and planning, and if in doubt, legal advice should be sought. The way in which offers of employment and employment agreements are drafted and accepted is of particular relevance and significant importance following the court findings.

If you would like further advice around casual employment, or any other employment matter, contact me at robert@hillhouse.com.au or call  07 3220 1144.

The information in this blog is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.

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