New Definition of Casual Employee
For many years it has been a workable business decision to use casual employees to meet short-term demand or to fill in for absent employees. Under the Pastoral Award it has been a more efficient means of employing staff compared to casuals.
The High Court recently ruled that if the contract of employment stated the employee was a casual and they were being paid appropriately, then the employee was a casual.
The Federal Government has introduced a new definition of "casual employee" that departs from the simplicity of the High Court decision and now looks at the "real substance and practical reality" of the relationship. Further, the employer will face penalties if they offer a contract as a casual contract, and the employee performs otherwise.
The employee will be a casual employee only if the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work. Coupled with this is the payment of the casual loading.
Some of the provisions the Commission would look at if there is a dispute are:
The basis of the real substance, practical reality and true nature of the employment relationship;
Whether the employer is obliged to offer work and whether the employee can refuse to work.
When looking at the nature of the employer’s business, it is likely there will be ongoing availability of work.
Whether there are full-time employees or part-time employees performing the same kind of work; and
Whether there is a regular pattern of work for the employee.
This change is yet to be commenced. If you are looking to employ casuals it is best to get advice and also ensure that the written contract of employment sets out the necessary provisions.