Business owners need to understand that legislation has provided the rights and entitlements of casual workers under given conditions. The Fair Work Act of 2009 provides for various rights and protections for casual employees. These include the following:
- Unpaid compassionate leave of two days per occasion
- Unpaid carer’s leave of two days per occasion
- Community service leave
- A day off work on public holidays (unless properly and reasonably requested to work)
- Casual workers employed on a regular and systematic basis, and who have a reasonable expectation of continuing employment on the same basis, have the same unfair dismissal rights as permanent employees
- “Long-term casuals” who have a reasonable expectation of continuing employment on a regular and systematic basis are entitled to parental leave. “Long-term casuals” are casual employees who have been employed by an employer on a regular and systematic basis for periods of employment of at least 12 months
Aside from the Fair Work Act, other legislation also prescribes coverage for casual workers. These include the Occupational Health and Safety legislation, the Workers Compensation legislation, and the Long Service Leave legislation.
Regular and systematic employment
The Fair Work Act has not provided a clear definition of regular and systematic employment. However, when asked to consider these terms, the courts have been inclined to giving it broad meaning. Casual workers can bring an entitled dismissal claim under the following considerations:
- Whether the employment itself is regular and systematic is more important than the hours/days of work being regular and systematic
- Variable start and finish times, as well as variable hours from one week or month to the next, cannot be used as basis/bases to rule that the employment is not regular or systematic
- If there is an established roster of and regularity to shifts as well as start and finish times
- If there is an established pattern or system where the casual employee is offered regular work where there is client/employer demand and said employee accepts or would accept said offer
- Whether there exists a clear pattern of work, and this work is offered with reasonable frequency, and that the said offer is then generally accepted by the casual employee
- A casual employee working full-time over a lengthy period of time will point towards regular and systematic employment
This is why employers need to be aware that courts will look beyond the words used in the employment contract, and that “regular and systematic” will likely be interpreted and defined broadly, if not exhaustively.
Employers should keep in mind that casual workers cannot just be dismissed at any given time, for just any reason.
Again, the Fair Work Act contains certain provisions that allow for casual employees to claim unfair dismissal. Outside of their minimum engagement period, casual workers have just as many rights as permanent, full-time, or part-time employees, given of course that they satisfy certain considerations that establish long-term regular employment.
Conversion from casual to permanent employment
Awards and agreements contain permanent conversion clauses and requirements. Casual employees must refer to the specific instrument that covers them for their applicable conversion clauses.
Conversion clauses will often require the casual worker to be engaged on a regular and systematic basis of employment for a specific period and length of time, for example six to 12 months. If this requirement is satisfied, the casual worker has the ability and is entitled to request a transfer from casual to permanent employment.
Employers can only refuse this request by providing proper, reasonable, and legally acceptable grounds for rejection. Casual workers looking into requesting transfer from casual to permanent employment are also afforded the right to contact their unions and seek legal advice to initiate and further their request for permanent employment.
Pay rates for casual employees
It is a must for employers to inform their employee at the beginning of their employment whether they’re casual or permanent. To be clear with this is not only logical but is also beneficial to both the employer and the employee.
The additional hourly pay that casual workers receive is called the “casual loading.” Casual workers’ hourly pay rate is the equivalent permanent hourly rate plus the 15 to 25 per cent of this hourly rate.
The award or agreement that covers the employment determines the rate of pay and the rate of loading. Also, employees are required to pay superannuation contributions for casual employees who earn more than $450 per month and are aged over 18, or are under 18 years old and work more than 30 hours a week.
Penalties and allowances
Awards and/or agreements usually include the following entitlements for casual employees:
- Higher rate of pay for public holidays worked, but not entitled for pay for public holidays not worked
- Extra pay (penalty rates) for evening, night, or weekend work
- Same rest breaks as permanent workers, including at least 30 minutes of unpaid break for every 5 hours of work
- Minimum length of shifts
All employees have the same right to work free from discrimination. It is unlawful and never acceptable to be bullied, harassed, and treated poorly at work, or to be fired on the grounds of discrimination.
Work safety and membership in labour unions
As with all other employees, casual workers have the same right to a safe and secure work environment. In the event of an injury at work, the same rights apply in determining due compensation. Also, casual workers have the same rights as any other employee to form, join, and be represented by a labour union.
If employers and business owners have a thorough understanding of the above considerations and then fulfilling all obligations mandated by legislation, this will no doubt help in engaging the services of casual workers without the danger of facing devastating legal repercussions.
Anyone wanting to seek clarifications on certain legalities concerning the employment of casual workers should always seek professional advice from their trusted lawyer with proven expertise on the subject matter.