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Casual employee
Practical Law ANZ Glossary w-030-5259 (Approx. 5 pages)
Glossary
Casual employee
An employee can be engaged on a full-time, part-time or casual basis. Casual employees have different entitlements and obligations to full-time or part-time employees.
At common law, the term "casual employee" has no precise meaning, and whether a person is a casual employee will depend on the facts and circumstances of each case. At common law, the essence of casual employment has been described as the absence of a firm advance commitment as to the duration of employment or the days or hours the employee will be required to perform work. In assessing whether there has been a firm advance commitment, common law courts will have regard to the employment relationship construed as a whole, including changes in the employment relationship which occurred after its commencement.
The Fair Work Act 2009 (Cth) (FW Act) contains a statutory definition of casual employee that overrides the common law definition of casual employee for the purposes of the FW Act, enterprise agreements and modern awards. Under the statutory definition, a person is a casual employee of an employer if all of the following elements are satisfied:
- An offer of employment is made on the basis of no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person.
- The person accepts the offer on that basis.
- The person is an employee as a result of that acceptance.
Whether a person is a casual employee is assessed on the basis, and at the time, of the offer and acceptance of employment, and not on the basis of any subsequent conduct (section 15A(4), FW Act).
When determining whether or not, at the time the offer is made, an employer makes no firm advance commitment, regard must only be had to whether the:
- Employer can elect to offer work and whether the person can elect to accept or reject work.
- Person will work as required according to the needs of the employer.
- Employment is described as casual employment.
- Person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.
A regular pattern of hours does not of itself indicate a firm advance commitment (section 15A(3), FW Act).
Once a person accepts an offer that meets this definition, the person will remain a casual employee until they either:
- Accept an alternative offer of non-casual employment from the employer and commence work on that basis.
- Their employment is converted to full-time or part-time work subject to a right of casual conversion.
The statutory definition for casual employee found in section 15A of the FW Act was introduced into the FW Act through the amendments to casual employment contained in the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021 (Cth), which commenced on 27 March 2021. Subject to limited exceptions, the statutory definition of casual employee under section 15A of the FW Act applies to offers of employment made in the following circumstances:
When offer of casual employment was made | Application of section 15A, FW Act | Relevant provision in Part 10 of Schedule 1 to the FW Act |
Offer of casual employment given before, on or after 27 March 2021. | Applies on and after 27 March 2021. | Clause 46(1), Part 10, Schedule 1 to the FW Act. |
Offer of casual employment given before 27 March 2021. | Applies retrospectively before 27 March 2021. | Clause 46(3), Part 10, Schedule 1 to the FW Act. |
For:
- An overview of casual employment, see Practice note: overview, Casual employment.
- Detailed guidance on the:
- common law's approach to casual employment, see Practice note, The common law approach to defining casual employment;
- statutory definition of casual employee under section 15A of the FW Act, see Practice note, Statutory definition of casual employee; and
- transitional provisions providing for when the statutory definition under section 15A does, and does not, apply to offers of employment given before, on or after section 15A commenced operation (27 March 2021), see Practice note, Transitional measures for the application of the casual employment amendments.