By Mark Cox, Director and Lauren Wright, Law Clerk
Over the festive season, many businesses employ additional staff on a casual basis to help manage the steep increase in customers, sales and the extended retail trading hours. It is important that employers are aware of their obligations to casual staff, for example to a minimum number of hours work in any engagement, and minimum rates of pay inclusive of casual loading. It is also necessary to mitigate any risk that a casual employee may later be able to mount legal claims to permanent employee entitlements.
In the recent decision of Skene v Workpac, a casual employee successfully argued that they had an entitlement to annual leave. Mr Skene argued that he was a permanent employee after he had worked as a dump truck operator at a coal mine for 12-hour shifts, on a ‘7 days off, 7 days on’ continuous and regular roster over a period of 4 years. The Full Bench found that the essence of a casual employment relationship to be “the absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work.”
The fact that Mr Skene was paid a higher rate of pay and was labelled a casual employee was not sufficient to negate the regular, systematic and ongoing nature of his employment. In light of this decision, employers should be vigilant when hiring casual employees, particularly throughout the festive season and into the new year.
How to: Hiring Christmas Casuals
1. When creating casual positions consider whether the role has irregularity, unpredictability, uncertainty, discontinuity and intermittency in the pattern and nature of work. If it is a regular and ongoing role into the long term, it is probably not suited to a casual engagement;
2. Clearly state in the employment contract that:
- the nature of the employment is casual and irregular;
- the casual loading is in lieu of any leave entitlements;
- the employee will not have fixed hours and will be advised on an as needed basis; and
- there is no promise of ongoing work.
3. Comply with your obligations as an employer to pay penalty rates, overtime and any additional loadings in accordance with the employment contract, enterprise agreement and/or modern award;
4. If you intend to retain a Christmas casual on a regular, systematic and ongoing basis over the coming year, transition the employee to a permanent part-time or full-time role and offer a new contract of employment.
There is little risk in cases of short term engagement over the busy festive season, but care needs to be exercised where that employment continues into the longer term. For more information on the Skene v Workpac decision and its implications for employers, our previous article is available here
This marks day five of MDC Legal’s 12 days of Christmas blog series, which will address a variety of issues that may arise for both employees and employers throughout the festive season.
MDC Legal are employment law specialists assisting employees, employers and industrial organisations – giving us a unique comprehensive insight into employment law issues.
 WorkPac Pty Ltd v Skene  FCAFC 131.