Rights of casual employees
Casual employees make up a significant proportion of the Australian workforce. In 2018, 25% of the Australian workforce were casual employees, with this remaining consistent since. Many casual employees believe that due to the casual nature of their employment, they do not have as many employment rights. Employers often take advantage of the fact that casual employees will not enforce their Rights as of a casual employee. Many employees do not pursue an unfair dismissal claim thinking they simply don’t stand a chance because they are employed on a casual basis.
This is worrying, as casual employees are disproportionately vulnerable. For example, they tend to be younger, with little savings. Casual employment is also more common in lower-paid industries such as hospitality, retail and aged care. A higher percentage of casuals have English as their second language
However, there are several casual employment rights under the Fair Work Act 2009. It is unlawful for an employer to prevent a casual employee from exercising these or to treat them poorly if they do. Legal recourse is available if this does occur.
This article will outline some casual employment rights below.
What is a Casual Employee under the Fair work Act?
Meaning of casual employee
(a) an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and
(b) the person accepts the offer on that basis; and
(c) the person is an employee as a result of that acceptance.
(2) For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:
(a) whether the employer can elect to offer work and whether the person can elect to accept or reject work;
(b) whether the person will work as required according to the needs of the employer;
(c) whether the employment is described as casual employment;
Note: Under Division 4A of Part 2-2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full-time employment or part-time employment.
(3) To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.
(4) To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.
(a) the employee‘s employment is converted to full-time or part-time employment under Division 4A of Part 2-2; or
To be clear casual employment is defined under the Fair Work Act as being where:
- An offer of employment is made
- The offer is made on the basis that the employer makes no firm advance commitment to continuing or indefinite employment. (not on rosters as an example, daily hire)
- The employee accepts the offer on this basis.
An employee may have a regular pattern of hours. This does not mean there is a firm advance commitment to continuing or indefinite employment. There are only two ways to become a permanent employee. First, converting casual employment to permanent employment. Second, accepting a different offer of employment.
Converting Casual Employment
One of the casual employment rights is to have causal employment converted to permanent employment. An employer MUST offer to convert casual employment to permanent employment where the employee has been employed for 12 months and during the last six months, the employee has worked a regular pattern of hours on an ongoing basis.
Whether the offer is for full-time or part-time employment will depend on the regular pattern of hours.
Casual employees are not entitled to paid leave. However, casual employment rights include requesting:
- 2 days unpaid carer’s leave
- 2 days unpaid compassionate leave
- 5 days family and domestic violence leave
- Reasonable time for community service leave (e.g. jury duty)
A casual employee must tell their employer as soon as possible that they plan to take leave, and how much leave is being taken. An employer is allowed to ask for evidence in relation to this leave, which the casual employee must provide.
Maximum Weekly Hours
While casual employment hours might not be fixed, employers must not take advantage of this. One of the casual employment rights is to work no more than 38 per week, where this is reasonable. This amount includes unpaid leave.
Whether working above 38 hours is unreasonable will depend on a variety of factors, such as:
- Risk to health and safety
- The employee’s personal circumstances
- The employer’s needs
- The usual trends of work in the industry.
If it is unreasonable to work more than this amount, a casual employee has the right to refuse to do so.
Flexible Working Arrangements
Casual employment rights include being able to request flexible working arrangements. These requests can only be made in certain circumstances. Thus far, COVID-19-related excuses are not mentioned in the Fair Work Act. For a casual employee to make a request for flexible working arrangements, they must have been employed for 12 months. They must also reasonably expect to continue regular and systematic employment.
The casual employee must also have one of the following apply:
- They are a parent of a child of school age or younger
- They are a carer
- They have a disability
- They are 55 years of age or older
- They are experiencing family violence
- They provide care to someone in their household who is experiencing family violence
A casual employee can exercise these casual employment rights by making a request in writing which details why the request is being made.
Working on public holidays
One of the general casual employment rights is to refuse to work on a public holiday. This is subject to a reasonable request by an employer.
A request will be reasonable depending on various factors, including:
- The nature of the employment
- The employee’s personal circumstances
- Whether the employee is entitled to additional remuneration
- The amount of notice given
If the public holiday falls on a day which the casual employee usually works, their casual employment rights include being paid for their ordinary hours of work that day.
Notice of Termination
A casual employee has casual employment rights regarding termination and redundancy pay. If a casual employee’s employment is terminated, they have the right to be given or paid notice. This depends on the length of service. For example, if the employee has worked one year, the notice period is one week.
If a casual employee has no right to be paid redundancy pay. (unless there is a industrial instrument or award that indicates redundancy is paid to casuals.
Legal Action Against Employers
It is a common misconception that casual employees have no way to enforce their casual employment rights. This is not the case. There are several avenues available to casual employees who have been treated unlawfully. These include unfair dismissal and general protections applications in the Fair Work Commission, and discrimination claims.
A casual employee can bring an unfair dismissal claim against their employer if they have worked for their employer for 6 months (or 12 months for a small business). This is providing the work is on a regular and systematic basis. Rosters, same days every week, guaranteed hours over the week. There is no one rule as to how this is measured. Also you have rights during a workplace investigation, click here for more information.
The casual employee must prove the dismissal was harsh, unjust, or unreasonable. Alternatively, a casual employee can make general protections claim. A benefit is that there is no minimum period of employment.
Excising a right (adverse action)
General protections claims require proving that an employer took adverse action against an employee for exercising a workplace right. Workplace rights include the casual employment rights listed above. What is the most common ground is a employee has complained to the company about something legitimate and was dismissed for complaining. (an obvious example is to complain about an aspect of safety. Its clearly going to cost the company money to rectify the issue so they dismiss the employee who complained the company thinking the problem has now gone away.
If a casual employee experienced discrimination based on sex, race, disability, age and so forth, they can also bring an anti-discrimination claim in the relevant human rights commission. Again, there is no minimum employment period for this.
Conclusion to Rights of casual employees
To wrap up, casual employees should be aware of their casual employment rights. This article has provided an overview of some of these. If an employer refuses to respect these rights, legal action can protect casual employees. This is especially important as casual employment remains a common type of employment. A lot of people like the ability to be casually employed, but everybody wants to be treated with respect. Not go to work in a toxic workplace.
What has slowly happened in Australian workplaces over the last 30 years is to now have different classes of employees, with different pay grades, rights and conditions for in many many cases exactly the same work.
- Permanent employees
- Casual employees
- Contractor’s or labor hire employees.
Companies clearly in many cases have a legitimate need for a flexible, dynamic workforce. They want the ability to respond to company needs as quickly as possible. Industry in Australia is struggling to compete with overseas companies. But lets be honest many companies “game” the system. At least be aware of the rights you have available to you.
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