Long Term Casuals

You can call an apple an orange but if it’s really an apple the law is likely to treat it as such.

Many businesses engage employees as ‘casuals’ genuinely believing this will allow flexibility by paying a fixed rate, terminating without notice and reducing the risk of unfair dismissal, only to find that all of these risks under workplace law remain.

Following are just a few common pitfalls where employers may come unstuck in relation to its casuals under the current workplace law legislation.

 

Underpayment Claims

If employees are engaged on a regular and systematic basis for a longer term:

• the employer may remain exposed to risks under workplace law surrounding termination of employment including possibility of an under-payment claim on the basis the employee was in fact a permanent employee, albeit that a higher rate has been paid to the employee to try to avoid this
• without limitation, such workplace law claims may be for annual leave, personal leave, public holiday pay and in the most extreme cases of “long term” casuals – long service leave

 

Potential Access to Unfair Dismissal

A casual is found to be a ‘long term casual’ employee under the Fair Work Act  and therefore not excluded from access to the unfair dismissal jurisdiction where they have been employed on a “regular and systematic” basis.

They must still meet the minimum employment period of 12 months for a small business (less than 15 employees) or 6 months for all other employers.

 

Entitlement to Parental Leave

A casual employee with at least 12 months regular service and a reasonable expectation of ongoing employment is entitled, under workplace law, to up to 12 months’ unpaid parental leave and can request a further 12 months (a total of 24 months).

 

Ability to Request Flexible Working Arrangements

A casual employee may make a request for flexible working arrangements under the Fair Work Act if the employee:

• is a long term casual employee immediately before making the request; and
• has a reasonable expectation of continuing employment on a regular and systematic basis

 

Conversion to Permanent Employment

Employers may be required to offer a casual employee to convert to full-time or part-time employment after they have been engaged for a specified period of time if provision exists in an applicable modern award.

 

Tips for Employers

To minimise risks and exposure, employers should:

• carefully and purposefully consider the engagement of each employee at the outset and as it evolves to ensure the payment arrangement and characterisation of employment properly reflect the real nature of the employment
•  consider strategies and tactics for changing the employment arrangements with such employees or at the very least make an informed commercial decision of the risks of continuing with a “casual” engagement on a regular and systematic basis
• consult workplace lawyers Sydney for practical employment advice on how to effectively and accurately implement workplace law in their business.

 

More Information

If you have any questions in relation to this article or if you would like any assistance in other employment law matters including employment contracts or you require an immigration lawyer Sydney, please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions team on 9635-7966 to speak with one of our employment lawyers about your employment law issue.