Casual employment staff

Changes in the Employment Landscape

April 26, 2020 | By Joanna Boston, Vitil People Solutions

The next 12 – 24 months are likely to bring some significant changes in the employment law landscape. So how may it affect you and what can you do to prepare?

The Australian government has highlighted a sweep of changes which will impact employers from SMEs to Corporates. In the SME space, the government is extending the regulation around the 'casualisation of the workforce' to permanent.

Casual convert to permanent – We can already see significant change in this space - casual employees can ask within 6 to 12 months of being employed, (Award dependant) to become a permanent part-time employee. The government is looking to extend this right further by embodying it into the National Employment Standards (NES).

What to do: Have the conversation with your employees. If they wish to stay casual employees, they can. Ensure that you record and document the conversation. Of course, your employee can change their mind and request to move to permanent part-time. They need to be aware their right remains.

Can you still employee casuals? – Of course, but make sure the casual loading is clearly identifiable as a set off in the casual employment contract.

Greater regulation of labour hire arrangements – Long term 'contractors' being utilised through labour hire agreements to work for a company, are being construed by the courts as permanent employees of that company.

What to do: If you need to increase your labour force for a specific project for example consider bringing on that individual on a fixed term contract for the period of that contract. Make sure however if the individual is retained for a further contract you don’t roll over the contracts. The contracts must be distinct, or the Courts will deem your contractor an employee.

Alternatively, if your business has seasonal fluctuation work you can engage a worker on a seasonal contract including a 'customary turn-over of labour clause’, enabling you to terminate at the end of the season.

State based long service to become part of the NES – Watch this space – unclear as to the impact on Australian small businesses as move from the State to State based regulation to a National Standard.

Domestic Violence Leave – Provide a statutory right for up to 10 days leave.

Casual Employee – If it look like a duck, walks like a's probably a...

What is a casual employee? There is currently no definition of a casual employee in the Fair Work Act. Two recent cases in the Federal Court have looked at this issue:

Workpac Pty Ltd v Skene [2018] FCAFC 131 and the Foodara Case Study, Klooger v Foodora Australia Pty Ltd [2018] FWC 6836.

In Skene the Court found that if an individual had:

  • Irregular work pattern
  • Lack of continuity
  • Unpredictable
  • Uncertainty as employment
  • Time sheets
  • Flexible work arrangement

...they would more likely to be viewed as a Casual.

However, if the work was:

  • Certain
  • Predictable
  • Regular pattern

...they would be viewed as a Permanent.

In the Foodara case, the work was not predicable or certain, and had flexible work arrangements. In this case the worker (Kloogar) was still found by the Court to be a permanent employee due to:

  • Errors in the contract – the Individual agreement contained terms similar to an employment agreement
  • The worker (Kloogar) did not have a trade or business of his own
  • The company determined which shifts Kloogar would undertake

The Courts will look very closely at arrangements, particularly in the case of vulnerable workers. If they see control over the way an individual is engaged by a company, they will deem that worker to be an employee even if the contract stipulates, they are a contractor.

Thank you Allion Partners for the key material that formed this blog. It has been modified for clients of Vitil.

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