On 26 August 2024 the laws of casual employment under the Fair Work Act 2009 are changing. We have previously overviewed the changes. With the changes about to start, we will explain the key points over 3 bulletins.
This bulletin explains the new meaning of who is a “casual”.
A new definition of Casuals
A new definition of casual employment applies from 26 August 2024. Its starting point is that an employee is only a casual if:
- they have a casual loading, and
- there is no “firm advance commitment” to continuing and indefinite work.
Until now when assessing the second point, the focus has been upon the wording of the employment terms.
The new definition changes this by also allowing the “real substance” and “practical reality” and “true nature” of the employment to be considered, even if not stated in an employment contract.
The new definition also requires the following matters to be considered:
- the employer can choose to offer (or not offer) work to the employee, and the employee can choose to accept or reject an offer of work;
- continuing work is reasonably likely to be available given the nature of the business;
- part-time or full-time employees are undertaking similar roles in the same workplace; and
- whether the employee has a regular pattern of work.
No single factor is conclusive. E.g. just because an employee has regular hours of work when that was not stated in their employment contract, does not necessarily mean they are not a casual.
When does a casual change to permanent?
Importantly a person who starts as a casual according to the new laws, remains a casual until:
- there is an agreed conversion under the new laws,
- the Fair Work commission makes an order under the new laws,
- their employment status is changed by their applicable Fair Work instrument (e.g. by a term of an enterprise agreement), or
- if an alternative employment offer is agreed.
This gives both employer and employee more confidence in how to manage the employment arrangements.
What Should Employers and Employees Do?
Employees should:
- Understand the new meaning of casual employment.
- Take care to understand an employment offer that is made to them.
Employers should:
- Consider how their current engagement of casual employees may be affected under the new definition of ‘casual employee’.
- Review their employment templates.
At WorkLegal our experienced team can answer your questions and put you on the right track. A range of fixed-price Initial Consultations will suit most people’s needs in quickly learning what their options are.
Some more information is available here or you can book online for an initial no-obligation chat about reviewing an employment contract or contractor agreement.