Merv Saltmarsh ARTICLE
Casual Employment - Be Aware
Under the Fair Work Act (FWA) part-time and full-time workers may be able to challenge an unfair dismissal, but what about casual workers who make up one fifth of the Australian workforce? What rights do they have? Read on and find out. Generally speaking, casual workers are not afforded the right to make a claim of unfair dismissal even if they believed it was harsh, unjust or unreasonable. Workers who are able to bring an action of unfair dismissal are covered by a modern award or an enterprise agreement – avenues which a casual employee may not be able to pursue. So, where does this leave the casual employee? Well, a casual employee who has been employed on a regular and systematic basis, with a reasonable expectation of continuing in their course of employment, might be able to bring a claim of unfair dismissal. It should be noted that a casual employee must be employed for at least six months in a business that has more than 15 employees, or for 12 months in a small business in order to bring a claim for unfair dismissal. Australian case law has reinforced the regular and systematic employment requirements under the Fair Work Act and has made further additions to what constitutes regular and systematic work. The courts have judged that if the number of hours worked were small, and the days of work irregular, further proofmay be needed in order to show that a casual employee has been regularly employed by the company. However, if there was a clear pattern of rostered hours, proof of regular employment might be established in such a circumstance. Furthermore, if the number of hours a casual has worked exceeds a full-time workload, this may be used as proof of regular and systematic employment. So, casual employees aren’t completely denied from making a claim against unfair dismissal. How much notice should we give a casual employee? This question was recently sent to our office. Q We have a casual employee whose services are no longer required. The employee was offered full-time employment but declined. He has been employed for about 18 months and works 20 hours per week. The National Employment Standards provide a minimum period of notice when an employee is terminated, which is based on years of continuous service with the employer. In this case, the employee has been employed continuously, but on a casual basis.
Do we give the employee two weeks’ notice of termination or is a casual employee excluded from notice of termination provisions? A While a ‘regular casual’ is usually able to access certain employment entitlements under the FairWork Act, such as parental leave and unfair dismissal, this does not extend to an entitlement to minimum notice periods. The Fair Work Act (s123(1)(b)) excludes a casual employee from Division 11 – Notice of termination and redundancy pay. Therefore, a casual employee employed on a regular and systematic basis is still a type of casual employee. Consequently, the terms (if any) of the applicable modern award or enterprise agreement will determine whether a casual employee is entitled to receive a period of notice of termination. Generally, an award or agreement does not prescribe a period of notice of termination, rather a minimum payment for work performed by the casual employee on the day may apply. For example, the Clerks – Private Sector Award 2010 (cl 12.4) provides that a casual employee is entitled to a minimum payment of three hours’ work at the appropriate rate, meaning a casual employee dismissed after one hour’s work is entitled to three hours pay at the casual hourly rate. Who else is excluded from minimum notice requirements? Casual employees are not the only category of employee excluded from the notice of termination provisions under the Fair Work Act. The Act also excludes the following categories of employees: an employee engaged under a contract of employment for a specified period of time, a specified task, or a specified season an employee whose employment was terminated because of serious misconduct • an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement • a daily hire employee working in the building and construction industry • a daily hire employee working in the meat industry in • •
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