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Employment, IR & Workplace Safety News Alert: The 'permanent casual' - Regular, systematic and problematic

News Alert 08 August 2013

The Australian Bureau of Statistics estimates that around 20% of Australian employees are engaged on a casual basis. Some advantages to this manner of engaging employees includes that casual employees are:

  • paid a ‘casual loading’ on their hourly rate taking into account benefits that full time and part time employees would receive like paid annual or sick leave;
  • not entitled to notice of termination (unless otherwise provided by award, agreement or contract); and
  • not entitled to bring an unfair dismissal claim, unless they work regular and systematic hours with the expectation of ongoing employment.

A casual employee working regular and systematic hours with a reasonable expectation of continuing employment may be considered by a Court to be a “permanent” employee. This finding can give rise to a variety of claims, most significantly, for unfair dismissal or unpaid entitlements (e.g. redundancy pay).

In the infamous unfair dismissal claim by a casual employee of celebrity chef, Colin Fassnidge, the Court found in this case that the employee was engaged on a “regular and systematic” basis for the minimum employment period and was therefore eligible to bring an unfair dismissal claim.

However, what constitutes a “casual employee” under common law is largely unclear. As stated by a Full Bench of the Fair Work Commission in the recent case of Telum Civil (Qld) Pty Ltd v Construction, Forestry, Mining and Energy Union (2013): “the notion of casual employment remains “ill-defined” under the general law and calls for the application of criteria that do not deliver a clear and unambiguous answer in many cases but, rather, lead to results on which reasonable minds may differ.”

TressCox Lawyers therefore recommends close scrutiny of the manner in which each and every casual employee is engaged, and whether that relationship is appropriate in light of their (irregular or regular) hours and continuity of employment. This includes clearly setting out the terms in a written contract. Care now may limit claims later.

Peta Tumpey, Partner

News Alert 08 August 2013
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