IR ALERT……..Casual Employment Update

Casual Employment

You may have recently heard in the media significant discussion about casual employment following the Federal Court case of Workpac Pty Ltd v Rossato. The outcome sent shockwaves across many industries given the regular use of casual employees in Australian workforces. 

The AHC wants to remind Members that we will be doing everything possible to deal with issues that arise because of this decision. We are engaging the Attorney General and Federal Minister of Industrial Relations, Hon Christian Porter MP, and we will keep our Members informed of updates. 

The Court determined that Rossato, who was initially engaged as a ‘casual’ by his employer in the mining sector, was in fact a ‘permanent’ employee. That meant he was entitled to paid leave under the National Employment Standards (“NES”). 

The decision also confirmed that should a ‘casual’ establish that they are in reality a ‘permanent’ employee, employers cannot offset any previous casual loading paid against the owed entitlements. 

We strongly emphasise that the decision does not allow actual casual employees an entitlement to paid leave. 

So where does that leave the AHC Members? 

The government has been called upon to make legislative amendments to the Fair Work Act 2009 (Cth) to expressly define a ‘casual’ employee. In turn, that will provide our Members further guidance about casual employee engagements.  In the meantime, we have compiled the below checklist to help our Members to appropriately employ casuals and mitigate

The Checklist

1. Ensure there is a written contract of employment between you and the casual employee. 

2. The written contract must expressly state that the employee is:
a. engaged on a casual basis; 
b. paid a casual loading atop the base rate of pay, and therefore not entitled to any paid leave available to permanent employees under the NES;
c. not offered guaranteed hours, days or times of work;
d. engaged each time on a separate basis; 
e. allowed to elect whether to accept a shift or not; and 
f. allowed to terminate their contract without notice.

3. Ensure that the payslips provided to the employee expressly state:
a. that the employee’s status is casual;
b. that the hourly rate being paid includes the casual loading; and
c. no accrual or a balance of paid entitlements under the NES due to the casual status. 

4. Avoid offering work regularly to the casual employee so that they do not have a reasonable expectation of work. 

5. Avoid having the casual employee work similar ordinary hours to that of a permanent employee. 

6. Avoid planning work or shifts well in advance through rosters. 

7. Provide irregular and unpredictable shifts with varying start/finish times and on different days during the week. 

8. Avoid fixed patterns or systems of work. 

9. Avoid having pre-filled timesheets for the casual employee to complete. 

10. Place no contractual obligation (e.g. a financial penalty) on the casual employee to attend shifts, except for a reasonable notice of cancellation. 

11. Consult regularly with the casual employee about possible conversion to permanent employment, noting the casual conversion clause available under the Modern Awards. 

What do you do if a casual employee is challenging their status of employment? 

Do not fret or panic, disputes regularly arise at workplaces. 

If you are unsure as to how to respond to the employee, please contact the AHC on (03) 9822 4100 and speak to the Legal and IR team. 

Disclaimer: The above is intended to provide general information in summary form. The contents do not contain specific legal advice and should not be relied upon as such. Formal specific advice should be sought by members with respect to particular matters. © MGA

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