Are my employees really casual?

(Source: HR Daily, Wednesday 29 January 2020)

Unfortunately, what should be an easy enough question to answer, seems still difficult.

Are my employees really casual?

It’s a question that my clients often ask me. And it’s frustrating to give them the answer:

It depends..

You would think that given the number of court cases on this matter, that what constitutes a casual would be easy to define. And in one way it is ..

A casual is an employee who works irregular, inconsistent hours with no expectation of ongoing work.

It’s easy enough to define what a casual is. It’s probably harder to define when a casual is actually a permanent part time employee.

Do they have regular and systematic employment?

Some possible clues:

  • The employee is rostered in a repetitive manner;
  • What’s the expectation around availability?? A true casual has the ability (in theory at least) to accept or decline any shift. Where there is an expectation that the employee is always available, it looks less like a casual arrangement.
  • Does the employee have an expectation that the work will be ongoing?

How long have they been employed?

If a casual has been employed systemically for more than 6 months (12 for small business), they may be able to lodge a claim for unfair dismissal if their employment is terminated unfairly.

What else?

Perhaps more worryingly, are the cases that show that where a casual employee is actually a permanent employee, the employer needs to backpay leave and other relevant entitlements.

Seems like a lot of bother..

This may be true, but the real question is whether you really need this flexibility? And whether there are other, less risky (and potentially expensive) ways of achieving this flexibility.

And to the try before you buy  – whether a well worded probation clause and solid induction/onboarding and probationary processes can help overcome this.

Then there are the employees who build their lives around a casual income, and who aren’t that keen on dropping 25% just to comply with the law.

The Takeaway

Whilst the issue of what is a “casual” and how do employers balance the need for flexibility with fairness and equity to their employees continues to be debated in the courts and within politics, employers continue to get frustrated.

A couple of things you can do protect your business and do the right thing by your employees:

  • Audit what your potential exposure is. How many long term casuals do you have?
  • Have a look at your recruitment practices. Do you really need to keep someone on casual for years to make sure “they’re right”?
  • What flexibility do you need? Are there other ways of achieving this?
  • Are you complying with the award provisions that allow a casual employee to request to be made permanent?



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