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EMPLOYMENT ALERT – CASUALS

…the highest court in Australia allowed an appeal against the decision of the earlier Full Court of the Federal Court in WorkPac and Rossato.

Author: James Welch

10 August 2021

Last week, the highest court in Australia allowed an appeal against the decision of the earlier Full Court of the Federal Court in WorkPac and Rossato. This has delivered some certainty to the casual employment relationship.

Mr Rossato had been classified a casual employee as he worked regular stable hours with predictability into the future. He was paid “casual loading allowances”, but the Court found that on top of this he was also entitled to leave, including annual leave and personal leave. This left employers across the nation with the possibility that after having paid higher casual rates, they might later be slugged with claims to back payments for leave.

However, with the amendment to the Fair Work Act passed in March this year, and this decision of the High Court, it is now clear that employees in circumstances such as Mr Rossato are not entitled to “double dip”.

Whilst the Fair Work Act has defined causal employees as someone who accepts a job offer knowing that there is no firm advance commitment to ongoing work with an agreed pattern of work, the High Court has clarified that the expectation of an advance commitment is a high bar.

Casual employees are now required to be given the Casual Employee Information Statement at the commencement of their employment. Employers must do this.

Existing casual employees must be provided with a copy of the Casual Employee Information Statement as soon as possible after 27 September 2021.

Long-term casual employees are entitled to request to be converted into a permanent employee once they meet the eligibility requirements. this involves working for their employer for 12 months, the employer not being a “small business employer”, and the employer having worked a regular pattern of hours on an ongoing basis for at least 6 months with the reasonable expectation that they would continue working those regular hours without any significant changes.

The law concerning casuals has recently changed. If you employ casual workers, please contact the team at ALG for specific advice to suit your circumstances.

Contact the ALG team on (02) 4220 7100 or by email at lawyers@alg.com.au to book an initial consultation.