If you are an employee or employer do you understand the proper leave entitlements for casual employees?

At Havilah Legal we are often asked about the rights and obligations of employees who are employed as casuals.

Whether the cost benefit in paying a higher hourly rate outweighs the saving of not needing to pay annual leave and sick leave was recently discussed in the Full Federal Court decision in WorkPac Pty Ltd v Skene [2018] FCAFC 131.

As an employer you should reconsider the choice of casual employment on the basis of this decision where the Court found that although the employee, Mr Skene, was designated “a casual” by WorkPac, he worked regular hours and, as such, was entitled to annual leave. A casual employee is one who has no expectation of ongoing work and no guaranteed or set hours of work.

A casual employee may be available to work regular or fixed hours, but ultimately works irregular hours of work when he or she is required.

The Court focused on there being no firm, advance commitment about hours of work.

While a casual is not entitled to be paid sick or annual leave, they will be eligible to various types of unpaid leave such as carer’s leave under the Fair Work Act 2009 (Cth).

While there is no definition in the Act for a “casual employee” there is a definition for the term “long term casual employee”, which is a casual employee who works on a regular and systematic basis for period of time during at least a 12 month time frame or longer.

The Fair Work Act 2009 (Cth) provides that a long term casual may request a flexible work arrangement and may take parental leave but does not provide that a long term casual is entitled to take paid leave or be given notice of termination of their employment. Businesses employing casuals should be alert consider to a casual employee who has been there for 12 months or longer and consider whether casuals have regular or set hours of work to fit within the true definition of a casual.

It is important to have employment contracts legally drafted to minimise the risk of casuals potentially succeeding in asserting they are a permanent employees.

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