Are you really a casual employee?

By Aron Neilson, Principal Lawyer, Accredited Specialist in Employment and Industrial law 

In late May 2020, a landmark court ruling confirmed some casual workers are actually entitled to paid leave and other entitlements, which may result in thousands of current and former employees submitting claims for the payment of recognition of these entitlements.

In the modern working world, casualisation is becoming more and more common. Casual employees receive more than the ordinary permanent rate of pay per hour, but are traditionally denied entitlements such as redundancy, annual leave, personal leave, compassionate leave, public holidays and, in some cases, access to the Fair Work Commission to contest the termination of their employment.

Changes to the way we work right now mean that the definition of casual employment may be unclear. 

What does casual employment actually mean?

The original concept of casual employment was to engage employees on short, intermittent engagements, such as an odd shift here and there, or covering sick leave for other employees.

However, the concept of casual employment has transformed, and is now a central feature of the modern employment relations system, creating significant issues around precarious employment.

The Federal Court in Rossato was required to look at the question of casual employment during the recent case of WorkPac vs Rossato, in which an employee had been employed as a casual for four years but later claimed the entitlements of a permanent employee.

What the decision in Rossato confirmed was that the Court will look to the substance of the employment relationship rather than how it has been labelled in determining whether someone is a casual employee.

Rossato reinforced that casual employment is indicated where there are irregular work patterns or where there is unpredictability about the work.

This is known in as an absence of a firm advance commitment as to the employment.

What is wage theft?

Wage theft occurs when employers take deliberate and calculated decisions to underpay workers. Overtime, superannuation and wages have all been the subject of wage theft in recent times.

What are the changes?

The Rossato case confirms that if you were treated as a casual employee by your employer but you had a regular, ongoing, firm commitment to ongoing employment, you may be entitled to leave and other entitlements.

The case challenges the way employers use casual employment arrangements to deny entitlements, and has opened ways for employees to demand the payment or recognition of their lawful entitlements.

The Court identified that casual employment involves an absence of a firm advance commitment, including irregularity, uncertainty, unpredictability, intermittency and discontinuity in the pattern of work. 

For more information about the case see here.

How do I know if I have been unfairly treated?

If you have been treated as a casual employee and you are able to demonstrate that you had a firm advance commitment to work, then it may be arguable that you should be entitled to the payment of leave and other entitlements.

Things to consider are your length of service with the employer, the roster arrangements in place, the regularity of your shifts, and the requirement to make yourself available for set and defined work arrangements (including overtime).

What should I do if I feel I have been denied my entitlements?

If you are a member of a union, get in touch with your representative to discuss your rights and options. For legal assistance, get in touch with us at Gordon Legal.

What to do if this information applies to you  

At Gordon Legal, we understand that your employment rights are a personal issue.

For personalised and individual advice, we offer consultations to discuss your matter.

Please call Gordon Legal on (03) 9603 3000 to speak with a member of our team.

Given the current environment, we are providing consultations over the phone or via video conferencing platforms.

The New Daily article link "Legal firm fighting for casuals warns against government ‘overreach’"
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