Your Casual Employees.….

There has been much interest in the latest Full Federal Court decision which has reconfirmed that casual employees who work regular (happens at set hours and normally set days) and systematic (rostered well in advance) hours, and are long term (a minimum of 6 months but normally over a period of years) indicating “predictable periods of working time” are likely to be considered permanent employees. This is regardless of what their employment contract says and whether they are paid a casual loading per hour.

The recent Federal Court judgement (WorkPac Pty Ltd v Rossato [2020] FCAFC 84) has resulted in the company being ordered to pay Mr Rossato unpaid annual leave, personal leave, compassionate leave and public holiday payments which are owing on the basis that he was a permanent employee, even though contract documentation and rate of pay detailed his employment as a casual.

There are a number of factors that led to this decision by the Federal Court. These include –

• The features of the relationship, not just the contract details – is the person actually working as a casual?
• A casual typically has “no firm advance commitment from the employer to continuing and indefinite work”.
• True casual employment is usually shown as “irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability”.

In this case the Court reviewed the above factors, as well as other pertinent facts and found Mr Rossato to be a permanent, as opposed to casual, employee.

As a result of this decision there continues to be concern on the status of casual employees who have been employed for more than 6 months on a regular and systematic basis. It should be noted that a casual employee is normally determined as someone whose work is inconsistent, irregular or short term.

The Health Professionals and Support Services Award 2010 provides further consideration to a regular casual stating “A regular casual employee is a casual employee who has in the preceding period of 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee or part-time employee under the provisions of this award.”

It is advised that at your Practice you complete the following on a regular basis in regard to your casual employees:

• Review your current casual contracts. Are they up to date? Do they have appropriate set off clauses?
• Be careful when classifying employees as casuals. Employees who work set, fairly inflexible hours with some certainty of ongoing work are unlikely to be true casuals.
• Review on an ongoing basis the employment arrangements of your casuals. Details may change during employment, what worked last year may not work now. You may need to consider converting casuals to permanent part time or full time to assist in limiting your potential exposure to further claims.
• Remember that casuals are ideally employed to ‘fill a gap’ on a short-term basis and work adhoc hours at different times and on different days – and not every week.
• Rosters should be completed ahead of time – but do not complete months in advance. The Award for the Dental industry states “The ordinary hours of work for each employee will be displayed on a fortnightly roster in a place conveniently accessible to employees. The roster will be posted at least two weeks before the commencement of the roster period.”

Please get in touch with Prime Practice HR Solutions if you require support on this or any other HR matter.