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Fair Work Act 2009: New Definition of Casual Employment – what does this mean for Members?
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Spotlight on casual employees:
Fair Work Act 2009: New Definition of Casual Employment – what does this mean for Members?
There has been much previous discussion and case law on when an employee should be regarded as a casual employee. To clarify the meaning of casual employment, a new definition on ‘casual employee’ has been inserted into the Fair Work Act 2009 (the Act).
The new meaning of casual employee under the Act
Pursuant to the Act, a person will be considered a casual employee if each of the following criteria is met:
1. An offer of employment was made
to a person on the basis that there is no firm advance commitment to continuing and indefinite work according to an agreed pattern of work;
2. The person accepts the above
offer on that basis; and
3. The person becomes an employee
as a result of that acceptance.
The above criteria are to be assessed at the time of offer and acceptance of employment.
Subsequent shifts offered and actually worked after the time of offer and acceptance of employment are not to be considered when determining if an employee is a casual employee.
“No firm advance commitment to continuing and indefinite work”
The Act places emphasis on considering whether the employer makes any “firm advance commitment to continuing and indefinite work according to an agreed pattern of work” at the time that the offer of employment was made.
The Act prescribes what must only be considered in determining whether there has been such firm advance commitment:
• Whether the employer can elect to offer work and whether the employee can elect to accept or reject this work; • Whether the employee will work as required according to the needs of the employer; • Whether the employment is described as casual employment; and
• Whether the employee is entitled to a casual loading or specific pay for casual employees under the offer or applicable modern award or enterprise agreement.
How can Members ensure that new casual employees fall under the new definition?
It is paramount for Members to ensure that any offers of employment made to casual employees are made on the basis that there is no firm advance commitment to provide them continuing and indefinite work in the form of an agreed pattern of work.
This means that at the time of offering casual employment, Members should make it explicitly clear to the employee that:
• They are being offered casual employment; • That there is no guaranteed fixed or agreed pattern of work; • That there is no commitment from the Member that their employment will continue into the indefinite future;
• That the Member will offer shifts at its own discretion, depending on staffing and operational requirements; • That they can choose to reject offered shifts at their own discretion; and
• That they will receive the casual loading.
Then, the Member should take care that the employee accepts employment on the above representations.
Only after acceptance of employment on the above representations should the
