Casual Employees – they may not be as casual as you think!
If your business employs a number of casuals you should be carefully reviewing the terms of their employment. There are two recent developments that will have a substantial impact on the employment of casual labor.
The first decision was a case in the Federal Court whereby a truck driver employed under a labour hire arrangement as a casual, was found not a casual and was entitled to be paid accrued annual leave because of his regular and predictable hours. This was despite him being paid casual loading in lieu of those entitlements.
This case was then criticized by employer groups and the Australian Government as 'double dipping' as it would be unfair to allow employees who have received a special loading as a casual to now be able to double-dip by also claiming annual leave and redundancy entitlements.
The NSW Business Chamber has applied for a new employment category to be implemented – a perma-flexi category – to combat the double dipping issue.
The second major development is from 1 October 2018, a new standard conversion clause will be incorporated into 85 modern awards streamlined across all industries. These new provisions will allow casual employees to convert to full-time or part-time work after 12 months of regular employment.
The clause also requires the employer to provide all casual employees with a written copy of the conversion clause within the first 12 months of their first engagement to perform work. All casuals currently employed must be provided with a copy of the clause by 1 January 2019.
What does it mean for your business?
Effectively it gives an employee the ability to convert casual employment to part-time or full-time employment and receive all the entitlements to follow.
Should I worry?
Managing staff, entitlements and potential conversion of casual staff to part-time and full-time employees is an intricate process and there are a number of factors that you should consider. They include:
• The longer the period of employment the higher the risks.
• The more regular the hours the greater the risks.
• Continuous and predicated rosters for the future are problematic.
• A pay rate that is grossed up and does not include a spate clearly identifiable casual loading are problematic.
• Calling someone a casual is not, of itself, decisive.
• Particular care should be taken for workers in remote locations and in unionized industries.
What should you do?
Worrying is of no use, action is much more important. If you employ a number of casual employees you should:
• Check any modern award that applies to you.
• Review all casual employment arrangements. You should check how regular the engagements are and what are the rostering patterns for the future.
• You should provide a copy of the causal conversion clause to all appropriate employees.
• Respond to any request to convert to casual employment.
• Make sure that your contracts of employment are up-to-date and include an offset provision.
At this stage it is unclear how many workers will take up the opportunity to convert their employment from casual to permanent employment. However it is very clear, if it looks like a duck, walks like a duck and quacks like a duck… then it's a duck!
This article was written by Partner David Potts.