Part-time and full-time employees enjoy numerous protections, with perhaps the most notable protection of all being that from unfair dismissal. However, some of those same protections don’t extend to casual employees, and when we take a moment to consider that one in five people (or to put it another way: 19%) currently employed in Australia are casuals, there is a significant number of people who aren’t eligible for some of the same rights that permanent employees enjoy. It doesn’t take a math genius to figure out that 19% of the workforce is a significant number, and if unfair dismissal protections aren’t generally available to casual employees: What rights are available to casual employees? Well, there are some protections under the National Employment Standards (NES) and to ensure that the rights are accessible, certain requirements must be met.
How are casual employees defined?
Before we begin with what protections may be available to casuals, it’s probably useful to define who is a casual employee in the first place.
It may be hard to believe that the courts have not really established a definition of who is a ‘casual employee’. In Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545, the High Court said the following about trying to define who can be considered as a casual employee:
“The description ‘casual worker’ is not one of precision: it is a colloquial expression, and where, upon all the facts, there is a reasonably debatable question whether the work is casual or regular, the question is one of fact...”
However, a commonly accepted definition can be found in Australian Communication Exchange v Deputy Commissioner of Taxation (2003) 53 ATR 834; 201 ALR:
“A casual employee shall mean an employee who is engaged by the hour and who may terminate employment or be discharged at any moment without notice."
Although the common law may have not settled on a definitive definition of who is a casual employee, legislation such as the Fair Work Act 2009 (Cth) (the Act) have exclusionary provisions that still affect casual, short-term, daily and weekly hire employees who don’t benefit from minimum notice requirements (s 123(1)(c), (3)).
What effect do the National Employment Standards (NES) have on casual employees?
In 2010 the NES was introduced setting out 10 minimum standards of employment covering all Australian employees found in Pt 2-2 of the Act outlining the minimum requirements that employers must abide by. The NES relates to the following matters:
- maximum weekly hours;
- requests for flexible working arrangements;
- parental leave and related entitlements;
- annual leave;
- personal/carer’s leave and compassionate leave;
- community service leave;
- public holidays;
- notice of termination and redundancy;
- Fair Work Information Statement.
For casual employees, there are a number of standards which are not applicable, such as:
- notice of termination and redundancy pay;
- paid personal or carer’s leave of up to 10 days, however, casual employees can take up to two days of unpaid carer’s leave and two days of compassionate leave;
- community service leave (ie jury service pay).
Although, casual employees may not have the type of protections available to part-time and full-time employees, casual employees do have a significant freedom of contract available due to the fact that employers aren’t required to make any type of severance pay to a casual employee.