Casual Employees

Casual employees – are they really any different to permanent employees in 2024?

SARAH LEGOE - AHA | SA SENIOR ADVISOR – WORKPLACE RELATIONS LIQUOR LICENSING & GAMING

The overwhelming majority of employees employed in the hospitality industry are engaged on a casual basis. Many of these employees are or have been engaged on a casual basis for some time, working the same or similar hours across the same or substantially the same roster from week to week.

Despite changes to the regulation of casual employment over several years, there is still a widely held belief that casual employees are not able to access many of the entitlements available to full time employees and can be, amongst other things, terminated at will or have their hours reduced significantly for no reason.

In this article we briefly bust the myths in relation to casual employees as well as look at the upcoming changes to the Fair Work Act 2009 in relation to casual employment.

There are a number of reasons as to why casual employment is the most utilised employment category in the hospitality industry. These include, but are not limited to:

1. Flexibility for employees as they are able to refuse shifts and have more control over time off during periods of unavailability.

2. Casual loading results in a higher hourly rate of pay.

3. Flexibility for the employer as the nature of the hospitality industry is such that the number of hours an employer can offer may fluctuate from week to week or month to month, and there is no limitation on the number of hours a casual employee must be offered (other than any minimum engagement period prescribed under an industrial instrument).

WHAT DIFFERENTIATES A CASUAL EMPLOYEE FROM A FULL TIME OR PART TIME ( PERMANENT ) EMPLOYEE?

A casual employee is an employee whose employment is characterised by the absence of a firm advance commitment to ongoing and indefinite work.

Unlike full and part time employees, casual employees:

1. are not required to work a set number of hours each week (other than the minimum engagement set out in the relevant award); and

2. are paid a casual loading which is paid in lieu of a right to receive paid annual leave, personal/carer’s leave, redundancy pay and notice of termination; and

3. are not required to comply with the notice provisions (whether employee or employer initiated).3

This is about where the difference in the modern employment landscape ends. Despite common belief, casual employees:

1. are entitled to payment for overtime for hours worked in excess of 38 ordinary hours per week (see the relevant award for all circumstances in which overtime is payable to casual employees),4

2. are able to access unpaid parental leave provided the minimum employment period is met and are able to return to their pre-parental leave role;

3. can access paid domestic and family violence leave and unpaid carer’s leave, bereavement leave and community service leave;

4. are entitled to long service leave;

5. are protected from unfair dismissal provided the minimum employment period is met and are covered by the general protections provisions;

6. may lodge a workers compensation claim in the event of an injury being sustained at work; and

7. have a right to request flexible work arrangements if they meet the minimum employment period.

Endnotes

1 Gilfillan, G, ‘Characteristics and use of casual employees in Australia’ (Research Paper Series 2017-18, Parliamentary Library, Parliament of Australia, 2018) .

2 Fair Work Act 2009 (Cth) s15A.

3 Fair Work Act 2009 (Cth) s 123(1)(c).

4 See for example, clause 11.4 of the Hospitality Industry General Award 2020.

5 Fair Work Act 2009 (Cth) sections 67(2) and 84.

6 Fair Work Act 2009 (Cth) sections 102, 104, 106BA and 108.

7 Long Service Leave Act 1987 (SA).

8 Fair Work Act 2009 (Cth) sections 382 and 340.

9 Fair Work Act 2009 (Cth) section 65(2)(b).

As can be seen from the above, casual employees receive many of the same protections and entitlements that a permanent employee receives. In 2024, the only real or substantial difference between permanent and casual employment is the flexibility casual employment provides both the employer and the employee.

UPCOMING AMENDMENTS TO CASUAL EMPLOYMENT

Will the upcoming changes to the Fair Work Act 2009 as a result of the passing of the Fair Work Legislation Amendment (Closing Loopholes No 2) Bill 2023 have any substantial effect on the casual employment landscape?

The amendments which commence on 26 August 2024:

1. vary the definition of a casual employee; and

2. repeal the casual conversion provisions and replace them with the employee choice provision.

Despite the variation to the definition of casual employee in section 15A of the FW Act, the focus will still be on the absence of a firm advance commitment to ongoing and indefinite work. This will need to be considered along with the ‘real substance, practical reality and true nature’ of the relationship.

Whether the variation to the definition of casual employee will have any significant or practical effect will remain to be seen, but as stated in the previous Hotel SA magazine, it is likely these amendments will only effect those employees who were never really a casual employee from the beginning.

Under the employee choice provisions the employer will no longer be required to offer to convert an employee’s employment status from casual to full or part time, rather the onus is placed on the employee who, provided certain criteria are met, will be able to request such conversion if they believe their employment no longer meets the definition of a casual employee.

WHAT SHOULD MEMBERS DO NOW?

In light of the impending changes, and the nature of casual employment generally, we recommend members give consideration to the following (if they are not doing so already):

1. Providing casual employees with a written contract of employment that clearly stipulates they are engaged on a casual basis, are paid a casual loading and have no expectation to a set number of hours.

2. Issuing rosters for casual employees no more than one roster cycle in advance.

3. Establishing a procedure for casual employees to provide notification of availability and the need to reject a shift.

4. Performance management, disciplinary action and consultation in respect of workplace change should be applied consistently to all employees, regardless of status.

5. Members will be provided with more information on the yet to commence provisions in due course.Please contact the Workplace Relations Team for further information on casual employment in the meantime. Ensure employees are provided with the Casual Employment Information Statement issued by the Fair Work Ombudsman when required.

This article contains information that is of a general nature and is for informational purposes only. This article, and its contents, does not constitute legal advice.