How Casual are Your Casual Employees? How Flexible are You as Their Employer?

By February 22, 2019Business Law

If you employ someone as a casual, but their work arrangements are more like that of a part time or full time employee, that employee may be entitled to the same benefits as a permanent employee, even if you have been paying them a higher casual rate.

For some time the courts have been looking closely at sham contractor arrangements and there is an increasing number of cases involving casual employees. The courts have been looking past an employee’s classification or job description and focusing on the actual arrangements of the employment relationship, to determine whether employees employed on a casual basis are in fact permanent employees, with all the associated entitlements.

A recent decision by the Federal Court highlights the risk for businesses that employ causal employees.

In August, the Federal Court considered whether employee Paul Skene could be considered a casual employee under the Fair Work Act.

Mr Skene was employed as a fly-in, fly-out dump truck operator at a Queensland mine. He was rostered 12 months in advance to work 7 days on and then 7 days off continuously. His flights and accommodation were paid for through the duration.

The roster for Mr Skene lasted for 22 months.

While his employer said that he was a casual employee, the Federal Court found that Mr Skene was in fact a full-time employee with entitlements such as annual leave.

His employer is now liable to pay monetary penalties and unpaid entitlements.

In this decision, the Federal Court made it clear that a casual employee can easily convert to a permanent employee throughout the duration of employment.

If you are an employer, then you must take care in reviewing the status of your employees. When undertaking this review, it is important to consider the regularity of employment e.g. if the employee has the same fixed work days every week, and is not notified week to week what days they will be working this might be one indicator that they are actually a part-time employee.

Even if an employee’s arrangements are more like a casual employee, if they have been employed on a casual basis for over 12 months and it is likely the relationship will continue, these casual employees are able to request flexible working arrangements and take parental leave.

Is your employee happy with their working arrangements?

The Fair Work Commission has recently published a new clause to be added into all modern awards under which employers must validate any decisions they make to refuse flexible working arrangements.

If the employer rejects the request and does not provide a sufficiently detailed explanation for the rejection, then the employee will have the right to carry out a legal challenge.

Employers will be obliged to talk through the request with the employee and try to reach a genuine agreement to accommodate the employees request and their circumstances.

If you would like more information on the above, please contact a member of our commercial team.