The definition of what is a casual employee will no longer be determined by the original written contract. The focus will be on the true nature of the employment type – casual or permanent.
The second part of the Closing Loopholes legislation has amended the definition of what is a casual employee in the Fair Work Act 2009.
The existing definition determined whether someone is a casual employee based on the nature of the initial offer of employment. The proposed amendments will allow a broader assessment based on the 'practical reality’ of what is happening in the workplace thereafter including the payment of a casual rate or loading.
The changes to the definition require examining the following factors in determining whether a casual employee has a ‘firm advance commitment to continuing and indefinite work’:
- The actual practice of the employer offering, and the employee of accepting or rejecting work.
- The question of whether continuing work is reasonably available given the nature of the business (i.e. is it a seasonal business)
- Whether other permanent employees are undertaking the same job.
- Whether the employee has a pattern of regular hours of work.
No single factor above, looked at in isolation, would decide whether a person is legally a casual. A regular pattern of hours at one point does not necessarily mean there is a commitment to ongoing work.
By way of a simple example an ice-cream making business would be highly seasonal and ramp up production with regular hours leading into summer and dramatically reduce those hours at some point calculated on projected stock sales heading into the colder months. Hence it is important to look at all the factors mentioned above.
These changes are effective from 26 August 2024.
Please contact Hunter Employee Relations if you wish to discuss legal structures and entitlements around the employment of casual, part-time, full-time or temporary employees.
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Kind Regards
Michael Schmidt
M 0438 129 728
www.hunteremployeerelations.com.au
Industrial Relations - Employment Law - Workplace Performance
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