With multiple public holidays looming and businesses closing for the New Year, casual employees often find it difficult to get by during the holiday period. Though there are in excess of two million employees within Australia believed to be employed on a casual basis, many workers are unaware not only of what rights they attract as casual employees, but that their employment status may be due for an upgrade.

Casual Worker or Permanent Employee

A true casual employee has no guaranteed hours of work, will work irregular hours, will not receive sick or annual leave, and can end their employment without notice (unless as otherwise agreed). However, they also attract the following rights:

1. A casual loading, being an additional payment on top of their hourly wage determined by their specific role;
2. Two days unpaid carer’s leave and two days unpaid compassionate leave per occasion;
3. Five days unpaid family and domestic violence leave (in a twelve-month period);
4. Unpaid community service leave;
5. Long service leave, based on ordinary hours worked per week; and
6. Superannuation, if earning more than $450.00 per month and are over 18 years of age.

But what constitutes a “casual” employee?

As mentioned above, if an employee is working in a regular or systematic pattern on an ongoing basis, they may not be a casual employee at all. The Federal Court of Australia has determined that a true casual employee has a work pattern that is irregular, uncertain, unpredictable and intermittent with a discontinuity in the pattern of work, including the absence of a firm advanced commitment to work.

Expected to Work

It may not matter if the days and hours worked vary, so long as there is an ongoing reliance on the worker’s services over a period of time and the hours add up uniformly each week. The more weighty indicia of whether the employee has a reasonable expectation of ongoing work, whether a casual loading has been stipulated in writing, the length of their engagement, how many hours they work per week, and how far in advance they are instructed of their working hours should be considered instead.

Should employees find that they have been working over a period of time on a regular and systematic basis, they should seek legal advice to understand whether they are permanent employees entitled to holiday pay, sick leave and annual leave under the Fair Work Act 2009. Being considered a permanent employee can also affect a worker’s termination rights, with permanent employees being able to claim for unfair dismissal.

It is always worth reviewing your relevant modern award to understand whether you are being paid correctly. This is especially true in the “silly season” when overtime or public holiday rates may apply. Woolworths is the latest large company to admit significant underpayment errors being made in relation to casual loading, overtime rates and superannuation for casual staff, with a current estimate of $200 to $300 million being owed to its employees.

If these entitlements have not been specified on your casual employment payslips, you may wish to seek advice as to whether you, like more than 2,500 Woolworths employees, have been underpaid.

Conversion to Permanent Employee

More than a year after a major amendment to the modern employment awards, many casual employees are still unaware of their right to request a conversion to permanent part-time or full-time employment.

Under these awards, “regular casual employees” (casual employees who have worked for a minimum of 12 months in such a pattern that, without significant adjustment, they could continue to perform their role as permanent employees) may make a written request to their employers for their roles to be made permanent.

Though such requests may be denied, the approval of such requests cannot be withheld on unreasonable grounds. Employees who have been denied requests of conversion should seek legal advice regarding whether it was reasonable for them to have been made permanent employees.

If you are unsure as to your rights and entitlements, or feel that you have been unfairly terminated from your employment, contact the employment law team at Websters Lawyers. Our Adelaide Office will remain open on all business days over the holiday period, and can be reached on 8231 1363.