In a recent Federal Court decision (Skene v Workpac Pty Ltd), the Court determined that Skene, who was defined as a "casual" under an enterprise agreement, was nevertheless a permanent employee for the purposes of the Fair Work Act. Although Mr Skene received casual loading under the enterprise agreement, the Court ruled that he was entitled to take paid annual leave under Fair Work's National Employment Standards (NES). Why? Because Skene's employment was regular and systematic, and did not meet the common law characterstics of a "casual" employee. In the eyes of the Court, Skene was a "permanent employee" and entitled to annual leave under the NES. This decision makes regular and systematic engagement of casual employees risky business, rather than a cost effective solution.
Avoid this Costly Trap
1. When hiring new staff, keep front of mind the definition of a "casual" employee:
an employer can offer employment to the employee on any day
the employee can elect to accept the offer of work
there is no certainty about the period over which employment will be offered
there is no informality, uncertainty and irregularity, and
there is no commitment as to the duration of the employee's employment or the days or hours of employee will work.
2. Consider a fixed term contract or permanent full-time/part-time employment to meet your needs. You then have the option for your new hire to work regular days/hours with the comfort if things don't work out, you can terminate their employment within 12 months.
3. For your existing "casuals", as soon as a regular work pattern emerges consider an alternative employment option (full-time, part-time, fixed-term contract) and act sooner rather than later.