The End to Casual Confusion? . . . Not quite

The Closing Loopholes legislation sought to provide further clarity to the vexed issue concerning ‘regular’ Casuals. It hasn’t.

The current definition of Casual employment (which you might recall was also introduced to provide more clarity) is based only on the initial offer of employment, whereas the proposed Closing Loopholes definition also takes account of the practical reality of what occurs in the workplace (which sort of goes back to what the old position was before it was amended to provide more clarity). Confusing isn't it?

DEWR officials have provided some further commentary which will be useful. In summary, DEWR said the new legislation required that a Casual employee must have that status on engagement by an employer and that that status remains unless one or more of the following occurs:

1. the employee elects to seek permanent status under an employee choice pathway and the employer agrees;

2. FWC arbitrates a dispute;

3. employment status changed under an industrial arrangement, such as an enterprise agreement or an award; or

4. agreement between the employee and employer that the status of their employment changes.

DEWR also stated:

1. Even if a Casual employee no longer meets that definition, as long they did on commencement, they remain as a Casual until one of the above events happens;

2. Nothing in the legislation requires an employee to change or convert to full-time or part-time employment – [but there might be conversion rights under an applicable industrial instrument]; and

3. A current Casual employee would be able to remain Casual if a definite period of work was defined by reference to a season, whether it be fruit-picking season or football season or Christmas holidays.

Our Take

As with a lot of these legislative attempts, ‘tinkering’ often does more harm than good and business has to wait till we get certainty from FWC or a court decision to really know what to do. The issue with Casuals is no exception. Hopefully, more commentary and clarity will be forthcoming as business groups continue to raise concerns.

In the interim we consider the best way forward through the confusion is to through a distinct employment contract (see below), combined with complementary supporting policies, procedures, and induction documents clearly identifying the distinction between Casuals and other types of engagement.

Action Items

Your Casual contract of employment is your front line defence when dealing with Casual employee disputes. Consider the following in your documents:

1. Name up as a “Casual employment contract” – keep these contracts separate from full-time and part-time contracts. The administrative savings of having a ‘one size fits all’ contract is now less valuable than it was previously and provides the opportunity for more confusion or ‘opportunists’;

2. Confirm no firm advance commitment to provide the employee with continuing and indefinite work in accordance with an agreed pattern of work;

3. Confirm the engagement is about business / personal needs – the offer for work is on an as is when required basis and the employee can take or reject shifts as suits them – that means business needs to accept that Casuals can’t be ‘relied upon’ to take every shift you offer. Further, make sure you keep evidence (e.g. email, text etc of when an employee rejects a Casual shift offer);

4. If you know the periods when you can give some ‘regularity‘ e.g. picking season or Easter holiday period,

5. set and limit the period of engagement – don’t make it indefinite as this type of arrangement ‘erodes regularity’;

6. Separately identify the Casual loading and explain how it works – again the administrative ease of a single all encompassing rate will not provide as much protection; and

7. Confirm there is no paid leave – the Casual loading usually 25% is the compensation for paid leave, redundancy benefits and notice of termination.

Your second line of defence is:

1. Policies and procedures making clear distinctions between Casuals and full/ part -time and Fixed Term/ Task employees;

2. Clear induction processes – which highlight and then reinforce the uniqueness of Casual employment;

3. Separate Casuals from full and part-time employees on the roster – or at least make sure their ‘Casual status’ is obvious; and

4. Time and Wages records – followed up with regular audits and reviews to identify patterns of regularity and ‘categorisation creep’.

Edge Legal

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