Casual employee but not really

Casual, but not really!

October 17, 2018 | By Charlene Woodbine, Vitil

In a recent decision, Workpac Pty Ltd v Skene (2018) FCAFC 131 (the Decision), the Full Court of the Federal Court upheld a decision finding that an employee characterised as a casual employee was, in fact, not a casual employee. This decision has implications for all Perth businesses employing casual staff.

1. What are the Elements of Casual Employment?

The Full Court reiterated that the 'essence of casualness' is that there must not be a firm advance obligation to provide ongoing work and therefore a capacity for the employee to have access to rest and recreation. In this case, Skene had a guarantee of hours from week to week evidenced by the employee being provided a roster 12 months in advance.

Based on the principles outlined in the Decision, the following checklist should be used to assist in determining if an employee is a genuine casual employee:

Characteristics of Casual Employment Yes No
Is there a firm advanced mutual commitment to ongoing employment? ie. Does the employee know well in advance when they are required to work?    
Does the employee work irregular work patterns?    
Is there uncertainty, discontinuity and unpredictability in the employee's pattern of work and period of employment?    
Do you or your employee know/think they are a casual?    
Does the award/agreement define your employee as casual and is this all that you are relying upon to determine the casual nature of employment?    
Does the employee receive a clearly defined amount in casual loading?    

If a casual employee has a regular and consistent pattern of work and the employee knows in advance when they are required to work, it may be that the employee is not a true casual employee. Please contact Vitil HR for further advice in relation to this matter.

2. If the employee is receiving a casual loading, doesn't that confirm that they are a casual employee?

The Federal Court has clearly stated that if an employer makes an error in the characterisation of an employee as a casual and pays the casual loading, this does not mean that the employer will not have to make payment to the employee for payment of leave and other entitlements that a fulltime/part time employee would receive. The employer is strongly advised to consult with a HR professional to obtain advice on contractual terms mitigating any loss to an employer if an employee succeeds in a claim.

3. What do I do if the casual employee works a regular shift pattern but wants to remain casual?

You are strongly encouraged to seek further advice from Vitil Human Resources. It is recommended that the employer meet with the employee to ensure that they are either provided a casual pattern of work or are given the option to become permanent employees, where appropriate.

4. What are the consequences of incorrectly defining a casual employee?

In this scenario, the employer may be ordered to pay the employee all of their entitlements as a fulltime/part time employee backdated to 6 years, potentially in addition to the casual loading that has already been paid to the employee.

Vitil Outsourced HR Consultants

If you are in doubt about casuals in your employ, please contact Vitil HR. Vitil are Outsourced Human Resource Consultants are a boutique HR consulting firm based across Perth, who offer flexible, reliable and affordable outsourced human resource support and recruitment services, where your team is the key focus. By outsourcing HR to an expert in Human Resource Services, our experienced professionals can objectively assess your environment, your human capital needs, and ensure we provide advice and support to further develop your team and your businesses performance.

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