Updated information relating to casual employees
By Andrea Bradley
Do you employ casuals within your business? Consider what these updates mean for you.
A Full Federal Court ruling in May 2020 has determined that casual employees who work regular hours over a predictable period of time are
likely to be considered as permanent employees, irrespective of the fact that the employment arrangement is defined as ‘casual’ and the
employee is paid a casual loading under the remuneration arrangements.
In the case of WorkPac Pty Ltd v Rossato it was determined that the employee was entitled to be paid annual leave, personal leave,
compassionate leave and public holiday payments on the basis that the employee was, based on the facts, considered to be a permanent
employee despite being engaged as a casual employee. This was based on the principles of regular, ongoing and permanent work that was not
genuinely ‘casual’ in nature.
Businesses that are pursued based on this case may be at risk of having to pay six years worth of back pay if claims can be substantiated in
relation to the permanent, and not casual, nature of the employment.
The decision of WorkPac Pty Ltd v Rossato is likely to be appealed to the High Court however it remains important for employers who engage
casual employees on a regular basis to review their employment contracts. Characteristics that demonstrate a casual employment arrangement
- Ad hoc and irregular working hours;
- Payment of a casual loading; and
- Absence of a firm commitment to future work.
Employers need to clearly define casual loading provisions and include the ability to set off the loading payment to maximise the ability to
recover payments made to the employee in the event that a casual employee later claims that they were actually a permanent employee. A
modernised employment contract can help to reduce the risk to your business of back payments for current and former employees that may have
been employed on a casual basis but worked on a more permanent, regular and predictable basis.
We recommend you consider this information in relation to your business. There is more information available on the Fairwork website and the
website notes that it will make updates, if required, as a result of this case. For further information, refer to the following Fairwork
casual employees link.