Casual Employees Have Rights Too!
Employers find casual employment useful as it fulfills an operational need without many of the more onerous (and costly) obligations of permanent employment.
Some employees also find casual employment attractive in view of the 25 per cent casual loading which is in lieu of certain benefits such as annual leave and personal leave.
The most common perception of a casual employee is a person who works irregular hours and not on a systematic basis, or alternatively, someone who works regular hours but only for a limited period.
However, what if a casual employee continues to work regular hours but for an indefinite period or for an appreciable period of time? Is the relationship still one of casual employment or has it, through the passage of time, become one of permanent employment, entitling the employee to the benefits such as annual leave and personal leave?
In the decision of Williams v MacMahon Mining Services Pty Ltd, the Federal Court upheld the findings of the trial court which found that Mr Williams, a mining worker who was employed as a casual on a fly-in/fly-out basis, was not a casual and as a result, was entitled on termination to pay in lieu of notice and payment for accrued annual leave.
One of the key factors to support this conclusion was the regularity of Mr Williams’ employment.
How casual employees are protected under the Fair Work Act
The Fair Work Act 2009 provides various protections for casual employees, including:
• Long term casuals who would have had a reasonable expectation of continuing employment on a regular and systematic basis, are now entitled to parental leave. Long term casuals are casual employees who have been employed by the employer on a regular and systematic basis for periods of employment of at least 12 months;
• All casual employees are entitled to unpaid compassionate leave of two days per occasion;
• All casual employees are entitled to unpaid carer’s leave of two days per occasion;
• Casual employees who have been employed on a regular and systematic basis and who have a reasonable expectation of continuing employment on the same basis, have the same unfair dismissal rights as permanent employees.
Regular and systematic
Regular and systematic is not defined in the Act and when asked to consider this term, courts have been inclined to give it a broad meaning. In Ponce v DJT Staff Management Services Pty Ltd t/a Daly’s Traffic, Fair Work Australia was required to consider whether Mr Ponce, who was employed as a casual, was entitled to bring an unfair dismissal claim.
In finding for Mr Ponce, the Commissioner made a number of observations, including:
• What is important is whether the employment itself is regular and systematic as opposed to the hours/days of work being regular and systematic;
• Variable start/finish times and variable hours from one week/month to the next, will not necessarily mean that the employment is not regular and systematic;
• If there is a clear pattern or a roster for the hours/days worked, this would be strong evidence of regular and systematic employment. However, even where there is no pattern/roster, evidence of regular and systematic employment can be established where:
− the employer regularly offers work when suitable work is available at times when the employee has generally made themselves available; and
− Work is offered and accepted sufficiently often that it is no longer occasional or irregular;
• Working full-time over a lengthy period will point towards regular and systematic employment.
In this case, Mr Ponce, a casual traffic controller who had worked as a casual for approximately 21 months, was found to have been employed on a regular and systematic basis. His times and dates of work were not determined by a published roster and availability a strong pattern. Although there was no fixed roster, his supervisor would always inform him when his next shift would be, and Mr Ponce nearly always accepted the shift that was offered to him. On average, he would work over 30 hours per week.
These factors were all considered to be relevant in coming to a finding that Mr Ponce’s employment was regular and systematic and that he had a reasonable expectation of continuing employment on that basis.
Implications for Employers
Employers should be aware:
• Courts/Tribunals will look beyond the words used in an employment contract;
• Courts/Tribunals are likely to interpret “regular and systematic” broadly;
• If a casual employee works regular hours and in accordance with a roster, and if employment on this basis is expected to continue, the relationship could well be one of permanent employment, entitling the employee to rights such as annual leave, personal leave, notice of termination, redundancy pay and protection from unfair dismissal;
• Long term casuals who have a reasonable expectation of continuing employment are entitled to unpaid parental leave under the Act;
Myth 1: Casuals can be dismissed at any time for any reason
Reality: The Fair Work legislation contains a reference to employees being unable to claim unfair dismissal for a dismissal that occurs within the minimum employment period. Outside of this minimum engagement period, long term casual employees have just as many rights as a full-time or part-time employee. As soon as this minimum employment period has been passed, the employer should essentially discipline or performance manage all employees in the same manner.
Myth 2: Casuals get a higher rate of pay so do not get any penalty rates or overtime.
Reality: The new modern award system prescribes a default casual loading of 25 per cent. However, many individual awards contain or prescribe for penalty rates, overtime and allowances to be paid to all employees including casuals.
Myth 3: Casuals do not get leave.
Reality: While casual employees are not entitled to be paid annual leave or personal leave, they are able to access time for these purposes without pay. Employers need to ensure they do not penalise or treat the employee any differently for taking leave from the workplace for these purposes — even though they are casual. Casual employees who have continuous employment are entitled to paid long service leave and can access unpaid parental and jury/community service leave.
If you wish to discuss any matters about how to manage employment matters or organisation policies and procedure, CCIQ members can contact Employer Assistance Line on 1300 731 988 or advice@CCIQ.com.au
DISCLAIMER: This document is an information source only. Despite our best efforts, CCIQ makes no statements, representations or warranties about the accuracy or completeness of the information and disclaims responsibility for all liability for all loss or damage you might incur as a result of the information being inaccurate or incomplete in any way, and for any reason. The information contained in this document is not intended to be nor should it be relied upon as a substitute for legal or other professional advice.