Court's ruling on 'casual' employees changes very little

By Robert Lamb, Director at Hillhouse Legal Partners
| 3 min. read
employment & industrial relations corporate & commercial

Key takeaways

  • Much of what the Court has said in the case of WorkPac v Rossato, at least in relation to what a casual worker may be defined as under the law, is not groundbreaking.
  • What many employers don’t realise is that just because an employee is specified as “casual” on their employment agreement and are paid the casual leave loading, does not necessarily mean legally they are a casual employee.

The Federal Court’s ruling in the case of WorkPac v Rossato has made headlines across Australia for the definition of “casual” work. Though the reality is that much of what the Court has said, at least in relation to what a casual worker may be defined as under the law, is not groundbreaking.

The media has jumped on the story and adopted an angle that as a result of the court’s ruling, casual workers who are working regular shifts and already receiving 25% pay loadings in lieu of benefits such as annual leave, might be able to “double-dip” billions of dollars of back pay for annual leave.

However, what the media are overlooking is the fact that under existing laws “regular shift workers” may not be “true” casuals in the first place.

What many employers don’t realise is that just because an employee is specified as “casual” on their employment agreement and are paid the casual leave loading, does not necessarily mean legally they are a casual employee.

Even under the existing laws, if an employee has:

  • Been working regular, systematic and consistent hours for a period of time; and
  • A reasonable expectation of continuing employment on a regular and systematic basis, that employee may, as a matter of law, be a part-time or full-time employee.

There are some other rules and regulations that are worth mentioning while this matter is being publicly debated:

  • Just like permanent employees, casual (and part-time) employees are already eligible to be paid 9.5% superannuation, as long as they have been paid been paid at least $450 before tax in a month.
  • They are also entitled to receive pro-rata long service leave after 10 years.
  • If a casual employee has been employed for at least 12 months with the employer, they are entitled to unpaid parental leave.
  • While terminating a true casual employee's employment does not require an employer to give a reason, or warning; unfair dismissal, adverse action and anti-discrimination laws may still apply to casuals who have been employed by the same employer for at least six months and have regular and systematic employment.

So, employing someone on a casual basis is not as clear cut as some employers may believe and there are many grey areas which require expert help to negotiate.

If you would like advice in this employment area, contact me at robert@hillhouse.com.au or call the Hillhouse Legal Partners office on 07 3220 1144.

The information in this blog is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.