Casual Employees Rights

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An employee has 21 days to initiate a claim, it is highly recommended one seeks professional representation in order to ensure a claim is submitted correctly and to maximize their chances of compensation.

The General Protections provisions are set out in Part 3-1 of the Fair Work Act 2009 (Cth) (the FW ACT). Under the FW Act, employers are prohibited from taking adverse action against an employee because of a workplace right or industrial activities and protects against discriminatory treatment on the basis of protected attributes and sham arrangements.

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I am a casual employee; do I have any workers’ rights?

As a casual employee, many wonder whether they have any employee or workers’ rights. The Fair Work Commission defines a casual employee if the employee accepts an offer for a job from an employer knowing that there is no firm advance commitment to ongoing work with an agreed pattern of work. For example, if an employee is employed as casual, their roster may change each week to suit their employer’s needs, and they can refuse or swap shifts.

Full-time and part-time employees have an advance commitment to ongoing employment. They can expect to work regular hours each week. They are also entitled to paid leave and and must give or receive notice to end the employment. However, under awards and agreements, casual employees are paid a casual loading, meaning a higher pay rate for being a casual employee. To find out more about your pay, please consult the Fair Work Ombudsman.

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protected from unfair dismissal

Casual Employee Protections

Are casuals protected from unfair dismissal?

The General Protections Provisions protect certain persons, including employees and prospective employees, employers and prospective employers, independent contractors and prospective independent contractors, a person who has entered into or who has proposed to enter into a contract for services with an independent contractor and an industrial association, including an officer or member of an industrial association. This means certain persons, such as an employer, are prohibited from taking adverse action against other certain persons, such as an employee, because the other person or employee has, or exercises a workplace right or engages in industrial activity.

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Unfair Dismisal of Casual Employee

What is a Workplace Right?

A person is protected from unfair dismissal if, at the time of the termination, they have completed at least the minimum employment period with the employer and they earn less than the high income threshold (which is currently $153,600per year) or a modern award covers their employment, or an enterprise agreement applies to their employment. If an employee or worker meets these requirements, they will have a right to lodge an unfair dismissal claim. But where do casual workers and employees fit within this framework? If you wish to discuss your casual employment rights, please contact 1800 333 666 and we can assist you in assessing your eligibility to lodge an unfair dismissal claim.

general protections and adverse action

Casual Employee Rights

Casual employee rights – minimum period of service

An employee or worker may make an application for an unfair dismissal remedy if they have completed a minimum employment period of: six months, or one year – where the employer is a ‘small business’. Periods of service as a casual employee may or may not count. Casual employees or workers are only entitled to an unfair dismissal remedy if their employment is regular and systematic and there is a reasonable expectation of ongoing employment.

Casual employee rights – regular and systematic

 The principle of “regular and systematic” requires the consideration of the nature and frequency of the work carried out by the employee. The term ‘regular’ implies a repetitive pattern and does not mean frequent, often, uniform or constant. The term ‘systematic’ requires that the engagement be ‘something that could fairly be called a system, method or plan’.

The Full Bench in Chandler v Bed Bath N’ Table Pty Ltd,[1] provided a summary of approach to determining whether a casual could be deemed regular and systematic: (emphasis added)

It is apparent on the face of the decision that the Deputy President’s determination as to whether Ms Chandler’s casual employment was regular and systematic was attended by a significant error of principle. In her application of s 384(2)(a) to the facts of the case, the Deputy President proceeded on the basis that it was necessary to identify a consistent pattern of engagement in the number of days worked each week, the days of the week worked and the duration of each shift in order to be able to conclude that the employment was regular and systematic. We do not consider this to be the correct approach. In Yaraka Holdings Pty Ltd v Giljevic, the Court of Appeal of the ACT gave consideration to the proper construction of s 11 of the Workers Compensation Act 1951 (ACT), which for relevant purposes deemed as workers for the purpose of that Act casual workers if their “engagement, under the contract or similar contracts, has been on a regular and systematic basis” taking into account a range of matters including the contractual terms, the working relationship and all associated circumstances, the period or periods of engagement, the frequency of work, the number of hours worked, the type of work, and the normal arrangements for someone engaged to perform that type of work. Crispin P and Gray J observed that the concept of employment on a regular and systematic basis was drawn from the Workplace Relations Act 1996, and went on to say (emphasis added):

[65] It should be noted that it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement. Furthermore, the section applies to successive contracts and non-continuous periods of engagement. It is true that subs (3) provides that, in working out whether an engagement has been on a regular and systematic basis, a court must consider, inter alia, the frequency of work, the number of hours worked under the contract or similar contracts and the type of work. However, these statutory criteria relate to the decisive issue of whether the relevant engagement has been on a regular and systematic basis. The section contains nothing to suggest that the work performed pursuant to the engagements must be regular and systematic as well as frequent. 

[67] Connolly J was right to conclude that the absence of any contractual requirements for the respondent to work at set times or of any assumption that he be present on a daily weekly or monthly basis unless told otherwise did not preclude a finding that his engagements had been regular and systematic.

[68] The term “regular” should be construed liberally. It may be accepted, as the Magistrate did, that it is intended to imply some form of repetitive pattern rather than being used as a synonym for “frequent” or “often”. However, equally, it is not used in the section as a synonym for words such as “uniform” or “constant”.

[69] Mr Rares argued that the course of engagement over these years had not been shown to have been systematic because it had not been predictable that the respondent would be engaged to work at particular times, on particular jobs or at particular sites. Again, that is not the test. The concept of engagement on a systematic basis does not require the worker to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance upon the worker’s services as an incident of the business by which he or she is engaged.

[12] Similarly, Madgwick J said (emphasis added):

[89] … a ‘regular … basis’ may be constituted by frequent though unpredictable engagements and that a ‘systematic basis’ need not involve either predictability of engagements or any assurance of work at all.

[90] The respondent’s work for the appellant was certainly frequent enough to be termed ‘regular’ within an acceptable understanding of that term, which may, even in ordinary speech, be used to denote ‘frequent’.

[91] Engagement under contracts on a ‘systematic basis’ implies something more than regularity in the sense just mentioned, that is, frequency. The basis of engagement must exhibit something that can fairly be called a system, method or plan (cf the definition of ‘systematic’ in the Macquarie Dictionary, revised 3rd edn, 2001).

[1] [2020] FWCFB 306.

To assess your casual employment rights, ask yourself, do you work based off of a roster? Do you work almost full time hours? Do you even need to check your roster or do you know when you are required to work? Do you work every week and usually the same hours?

If you answered yes to one or more of these questions, it is likely that as a casual, you have the right to lodge an unfair dismissal claim if you meet the minimum period of service.

If you wish to discuss your casual workers’ rights, please contact 1800 333 666 and we can assist you in assessing your eligibility to lodge an unfair dismissal claim.

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Long-Term Casuals

Right to Long Service Leave

For most employees in Australia, if they have been working for the same employer for an extended period of time, they are entitled to long service leave. But the entitlement is different for each state and territory. In most states and territories, long-term casual employees are eligible for long service leave. To find out your long service leave entitlements and your rights as a casual worker in your particular state, please consult the State specific legislation or the Fair Work Ombudsman.

Casual Workers Rights

Unlawful Termination and Dismissal

If a casual employee does not qualify for an unfair dismissal, this does not mean that they have no employee rights. Aforementioned, under awards and agreements, casual employees are paid a casual loading, meaning a higher pay rate for being a casual employee. Casual employees may also have a right to long service leave in their respective states.

Nevertheless, all employees, including casuals, cannot be terminated for an unlawful reason. Under the Fair Work Act 2009 (Cth) (the Act), section 772 of the Act says that an employer must not terminate an employee’s employment for one or more of the following unlawful reasons: 

  • temporary absence from work because of illness or injury (within the meaning of the Fair Work Regulations 2009);
  • trade union membership or participation in trade union activities outside working hours (or during working hours with the employer’s consent);
  • non-membership of a trade union seeking office as, or acting or having acted in the capacity of, an employee representative; 
  • the filing of a complaint, or the participation in proceedings, against the employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; 
  • race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin; 
  • absence from work during maternity leave or other parental leave; 
  • temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.

Casual Employees – General Protections Claims

The General Protections provisions are set out in Part 3-1 of the Fair Work Act 2009 (Cth) (the FW ACT). Under the FW Act, employers are prohibited from taking adverse action against an employee because of a workplace right or industrial activities and protects against discriminatory treatment on the basis of protected attributes and sham arrangements. The General Protections provisions also protect casual employees from adverse action.

You may be asking yourself, what is a workplace right? How do I know if I have exercised a workplace right? Under the FW Act, a person has a workplace right if they are entitled to the benefit of a workplace law or instrument, has a role or responsibility under a workplace law or instrument, is able to initiate or participate in a process or proceedings under a workplace law or instrument and is able to make a complaint or inquiry to seek compliance with a workplace law or instrument. For example, an employee is entitled to complain about the fact that they were not given annual or personal leave or complain as to why there was a deduction in their pay. An employer is therefore prohibited from taking any adverse action, such as terminating an employee, because of this workplace right or because the employee has or has not exercised a workplace right. 

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adverse

You may also be asking yourself, what is adverse action? Adverse actions can include termination of a casual employee but encompasses a range of other actions such as prejudicing the casual employee, injuring the employee in his or her employment or discriminating against them. Altering the position of a casual employee to the employee’s prejudice or injuring the employee in his or her employment, is a broad additional category of adverse action but includes situations in which an employee is in a worse position after the employer’s acts than before them. As a result, a deterioration has been caused by the employer’s intentional acts and the employee has been deprived of one or more immediate practical incidents of employment. Examples of this include an employer issuing an employee with a written warning, altering the roster and reducing their hours, reducing their status and level of responsibility or suspending the employee. 

If you have been termination and believe this is adverse action, you may be eligible to lodge a General Protections Claim Involving Dismissal through a Form F8 with the Fair Work Commission. If you have not been terminated but you have been a victim of another form of adverse action, you may be eligible to lodge a General Protections Claim Not Involving Dismissal through a Form F8C with the Fair Work Commission

If one or more of these scenarios applies to you, we can help! If you wish to discuss your casual workers’ rights, please contact 1800 333 666 and we can assist you in lodging a General Protections claim.

Casual Employee Rights - I made a complaint and got sacked

Another protection afforded under the General Protections provisions is coercion and undue influence or pressure. A person must not organise, take or threaten any action against another person to force that other person to not exercise a workplace right. Thus, an employer must not threaten an employee with demotion unless the employee stops a sexual harassment claim against their manager. In addition, an employer must not exert undue influence or undue pressure on an employee in relation to a decision that an employee is required to make relating to the terms and conditions of employment. For instance, an employer must not pressure an employee to agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.

Casual Employee Rights, Unfair Dismissal Australia
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Casual Employee Rights – I am being discriminated against but I am only a casual employee

The Fair Work Act 2009 (Cth) provides employees, including casual employees, with the right to not be discriminated against in the area of employment. Thus, a casual employee cannot terminate an employees’ employment or deliberately treat a casual employee, or a group of employees, less favourably than other employees because of their race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Discrimination in this context is not limited to a direct and conscious distinction based on an employees’, or casual employees’, protected attribute but could encompass indirect discrimination. Indirect discrimination is conduct that appears neutral but impacts disproportionately on a group with a particular protected attribute and thus could amount to, or result in, less favourable treatment. If you are a casual employee and feel that you have been discriminated against, please contact us for free advice on 1800 333 666.

Remedies

If a person, such as an employee, can successfully establish that another person, such as an employer, has breached the General Protections provision, the person may be entitled to remedies in the Fair Work Commission, the Federal Court or the Federal Circuit Court. Remedies available in the Fair Work Commission include reinstatement, orders relating to continuity or lost remuneration and compensation. In regards to compensation, this can include non-economic loss such as hurt, humiliation and distress where there is a casual connection between the contravention and the loss. Compensation in this form is referred to as general damages.

Initiating a General Protections Application

If an employer has dismissed an employee and they believe this action was done because they have exercised a workplace right, the employee has 21 calendar days after the unfair dismissal took effect, to lodge an application in the Fair Work Commission. Once an application is lodged, the Fair Work Commission will set the matter down for a conciliation conference, a private proceeding conducted by an independent conciliator. This conference is an informal method of resolving a General Protections dispute in which an independent conciliator will assist the parties in exploring options for resolution and help them to reach an agreement without the need for a formal hearing or court proceedings. If either party objects to a conference, an application for an interim injunction can be made and the matter can proceed directly to court.

It is highly advised you get professional advice. CALL US NOW.

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How Can We Help?

As Someone who has been in this industry for decades..
If the Fair Work Commission (the Commission) is satisfied that an employee (who is protected from unlawful termination) has been terminated for one or more of these prohibited reasons, the employee may be entitled to damages or compensation. As independent workplace representatives, we can assist employees who have been unlawfully dismissed with lodging an application to the Fair Work Commission. Please remember if you have been dismissed, there is a strict 21 days after your dismissal takes effect to lodge an application, so please call us on 1800 333 666. If you are still employed but have suffered other adverse action, please contact us as soon as possible on 1800 333 666 for free advice.

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