The meaning of a casual employee is specifically defined in the Fair Work Act 2009 (Cth).
This definition changed on 26 August 2024. If a person commenced employment as a casual employee before the change, they will stay casual under the new definition unless they move to permanent employment under Division 4A of Part 2.2 of the Fair Work Act as outlined below, or the employee accepts an alternative offer of employment on a different basis and commences work on that basis.
A person is a casual employee of an employer if [s 15A(1)]:
- the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and
- the employee would be entitled to a casual loading or a specific rate of pay for casual employees under the terms of a fair work instrument if the employee were a casual employee or the employee is entitled to such a loading or rate of pay under the contract of employment.
Whether the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work should be assessed [s 15A(2)]:
- on the basis of the real substance, practical reality and true nature of the employment relationship, and
- on the basis that a firm advance commitment can be in the form of a contract of employment or, in addition to the terms of that contract, in the form of a mutual understanding or expectation between the employer and employee (this may be inferred from the conduct of the employer and employee), and
- having regard to all of the following considerations (which may together indicate the presence, rather than the absence, of such a commitment):
- whether the employer is able to elect to offer or not offer work and the the employee is able to accept or reject work (and whether this happens in practice),
- whether having regard to the nature of the employee's enterprise, it is reasonably likely there will be continuing work of the kind usually performed by the employee,
- whether there are other full time or part time employees performing the same work usually performed by the employee, and
- whether there is a regular pattern of work for the employee that need not be completely uniform (also regular pattern of work does not alone indicate a firm advance commitment to continuing and indefinite work)
There is an exception to the above definition for employees of higher education institutions in some circumstances [s 15(4)]. An employee is not a casual employee if:
- the contract of employment has a termination date, and
- the employee is a member of the academic or teaching staff at a higher education institution, and
- the employee is covered by specific higher education awards listed in the Fair Work Act, and
- the employee is not a State public sector employee.
A casual employee usually works on an irregular basis and may or may not be offered work which in turn they have the option to refuse. Workplace agreements and awards often contain provision for casual employees. However, many workers are called 'casual' when in fact they are part-time or full-time employees, with an advance commitment to continuing and indefinite employment. These employees may not be true casual workers and they should seek further advice about their entitlements.
As a general guide, casual employees:
- have the right to access a pathway to become a permanent employee (casual conversion) under the National Employment Standards
- are not entitled to holiday pay, sick pay, or payment for public holidays not worked;
- should be paid an extra loading (25% extra in compensation for not getting annual and sick leave);
- are entitled to workers compensation;
- are protected by anti-discrimination laws;
- may be entitled to long service leave if their employment has been constant;
- have the right to make an unfair dismissal claim if they have been employed as a regular casual employee for the minimum period; and
- should receive superannuation payments (11.5% on top of pay - as at 1 July 2024) - the requirement to earn at least $450 per month was removed on 1 July 2022 [Superannuation Guarantee (Administration) Act 1992 s 19(2)].
Under Division 4A of Part 2.2 of the Fair Work Act 2009 (Cth) a casual employee who believes they no longer meet the definition of a casual employee and has worked for an employer for at least 6 months (or 12 months in the case if their employee is a small business with fewer than 15 employees) may give an employer written notification to change to full time or part time employment under section 66AAB. All employers need to provide their casual employees with the Casual Employee Information Statement (including new employees) that outlines casual conversion requirements [see s 125B].
For more information about casual employment, see the Fair Work Ombudsman website.
Casual employees : Last Revised: Thu Aug 29th 2024
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