When is a Casual Worker not Casual?
22nd Aug 2024
Casual worker contracts are the perfect solution for businesses when demand increases during peak times, such as Christmas or Summer holidays. They also offer employees more flexibility, including full-time students off on term holidays.
At what point does a casual worker no longer fit the definition of “casual”? When does a casual worker become something more?
Understanding Casual Employment
Casual workers are typically employed as needed, without guaranteed hours or ongoing commitment from the employer or employee. This arrangement offers flexibility: employers can scale their workforce up or down depending on demand, and workers can accept or decline work as they please.
Over time, a casual worker doesn’t always retain the “casual” element, and lines begin to blur. This leads to the casual worker being entitled to additional rights similar to other employees on permanent contracts of employment.
When casual work becomes regular work
A key indicator that a worker is no longer casual is the regularity and predictability of their work/shifts. For example, if a casual worker starts working consistent hours every week or is scheduled for shifts well in advance, it resembles a permanent employee rather than a casual worker.
For example, if a casual worker regularly works every Monday, Wednesday, and Friday for 12 weeks, the regularity of the shifts may indicate an ongoing employment relationship, meaning the worker is no longer casual.
Courts and tribunals often examine the overall work pattern to determine whether the relationship is truly causal.
The duration of employment may be another indicator of whether the employee is casual or not. If a “casual worker” has been with the business for over a year (for example), it may be argued that their work is no longer casual.
Long-term casual employees may be entitled to request a more stable work schedule or even the right to certain forms of leave.
Expectations of ongoing work
Casual work is not guaranteed by either the employer or the employee, who has the right to refuse it.
However, the situation changes if there is an expectation of ongoing work. This expectation can be explicit (such as in communications from the employer) or implicit (such as being regularly rostered for the same shifts).
If a worker believes, based on the employer’s actions, that they will continue to receive work regularly, they may no longer be genuinely casual.
This expectation of ongoing work is fundamental in determining the nature of the employment relationship.
Employment law rights
If a casual worker’s role starts to resemble that of a permanent employee, they may be entitled to the same benefits, including:
- Holiday Pay: Even casual workers accrue holiday pay, but long-term casuals may be entitled to more predictable leave arrangements.
- Sick Leave: While traditionally unavailable to casuals, long-term casual workers can access sick leave under certain conditions.
- Job Security: The right to request more stable work hours or even conversion to permanent status might become relevant.
Legal Considerations
Employers must be careful to correctly classify workers, as misclassification can lead to legal disputes and financial penalties. A worker who feels they have been misclassified as a casual may take legal action, claiming they should have been treated as a permanent employee with the associated rights and benefits.
Employers should regularly review their casual workers’ contracts and work patterns to ensure they are correctly classified. If a worker’s role has evolved, it may be time to offer a more appropriate contract that reflects the reality of the employment relationship.
When a casual worker is no longer casual
The line between casual and permanent employment can be thin and sometimes difficult to define. However, as work patterns evolve, what starts as casual employment can turn into something more. Both employers and employees must be aware of this shift, as it carries significant implications for employment laws entitled to the worker.
If you’re an employer, regularly assess your workforce to ensure everyone is correctly classified.
Our outsourced HR services can assist your business in navigating employment contracts and entitlements for you, the employer, and the employee.
