Article
MERV SALTMARSH - ER & Business Improvement Manager
Casual Employment
How much notice should we give a casual employee? The following questions are often asked via 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 Fair Work 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 connection with the slaughter of livestock • A weekly hire employee working in connection with the meat industry and whose termination is determined solely by seasonal factors. As mentioned previously, the minimum period of notice of termination provided by the applicable modern award or enterprise The answer to the above question is based on the presumption the employee is a casual employee. This can be difficult to determine in some circumstances. It is important to determine the nature of the employment relationship: a casual employee, generally, does not have access to entitlements available to part-time or Casual Employment of weekly employees, such as paid annual leave, paid personal/carer’s leave, public holidays, notice of termination, etc. agreement is still enforceable. What is casual employment?
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