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Limelight Articles

Limelight 04/21

A new definition of casual employment

Author, Mark Curran

A new definition of casual employment has been implemented by the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (the Act), which focuses on how the employee is engaged.

Background

The definition of casual employment has been uncertain for some time. The Explanatory Memorandum to the Act notes:

  • The Full Federal Court decisions of WorkPac Pty Ltd v Skene [2018] FCAFC 131 and WorkPac Pty Ltd v Rossato [2020] FCAFC 84 developed the meaning of casual employment at common law by focusing on the substance and totality of the relationship;
  • Those cases found the essence of casual employment is the absence of a firm advance commitment to continuing and indefinite work according to an agreed pattern of work;
  • This is in contrast to the description of casual employment in most modern awards, which usually focus on the employee being engaged as a casual and being paid a casual loading.

The new definition

 The Act contains a new definition of “casual employee” A person will be a casual employee if:

  • 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; and
  • the person accepts the offer on that basis
  • the person is an employee as a result of that acceptance.

In determining whether the employer makes no firm advance commitment to continuing indefinite work according to an agreed pattern of work, regard must be had to whether:

  • the employer can elect to offer work and whether the person can elect to accept or reject work
  • the person will work as required according to the needs of the employer
  • the employment is described as casual; and
  • the employee will be entitled to a casual loading or a specific rate of pay for casual employees.

Importantly, the Act provides:

  • the question of whether a person is a casual employee is to be assessed on the basis of the offer of employment and not on the basis of any subsequent conduct of either party (in contrast to the approach of the Federal Court in Skene and Rossato)
  • 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.

Conclusion

 This new definition of casual employee places great emphasis on the drafting of casual contracts of employment and, in particular, whether the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work. Employers of casual employees should review their contracts of employment having regard to the new definition of casual employment.

 

 

 

 

 

 

 

 

This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.