Employers unaware of rights of long-term casuals

Analysis

Employers unaware of rights of long-term casuals

A 'long-term casual employee’ who is employed on a ‘regular and systematic basis’ may have access to entitlements and protections not afforded to other types of casual employees.

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Under the Fair Work Act (FWAct), a ‘long-term casual employee’ who is employed on a ‘regular and systematic basis’ may have access to entitlements and protections not afforded to other types of casual employees.
 
Employers have been caught unawares regarding this category of employment. While the definition of the meaning of these terms is usually raised as a jurisdictional point in an unfair dismissal application, such a casual employee may also be eligible to receive other entitlements under the FWAct.

What does it mean
 
The FWAct (s12) contains a definition of the meaning of ‘long-term casual employee’ if, at that time: 
    • the employee is a casual employee; and
    • the employee has been employed by the employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months.
The casual employee must also have had a reasonable expectation of continued employment by the employer on a regular and systematic basis. The FWAct, however, does not define the meaning of the term ‘employed by the employer on a regular and systematic basis’.

Entitlements/protections under the FWAct
 
A reference to a ‘long-term casual’ or a casual employee ‘employed on a regular and systematic basis’ can be found in a number of areas of the FWAct. These being: 
    • Parental leave — to be eligible for unpaid parental leave under the NES, a full-time, a part-time, or a long-term casual employee, must have completed at least 12 months continuous service with the employer;
    • Unfair dismissal — an employee must have completed the relevant period of employment (six months or, where the employer employs fewer than 15 employees, 12 months), which states that service as a casual does not count unless the casual was employed on a regular and systematic basis and the employee had an expectation of continued employment by the employer;
    • Requests for flexible working arrangements — a long-term casual employee can make a request after completing at least 12 months continuous service with the employer;
    • Meaning of ‘small business employer’ — the number of employees counted in determining whether an employer employs fewer than 15 employees includes casuals employed on a regular and systematic basis.
Employed on a 'regular and systematic basis’
 
The Fair Work Commission (FWC) has identified the criteria it will consider when determining whether a casual employee’s employment was on a regular and systematic basis.
 
FWA heard a claim of unfair dismissal which illustrates the type of evidence that may indicate whether the casual employment is regular and systematic:
    • The employee is offered work regularly — (say) on average of 4 days a week;
    • The employee generally accepted work when it was offered. The employee could be expected to accept employment offered. There was only evidence on one occasion when this did not occur;
    • The total hours worked were roughly similar to the total ordinary hours that would be expected of a full-time employee — this being evidence of work on a regular and systematic basis. Under industrial instruments it is possible the hours and days of work for a full-time employee could be arranged in a similar pattern to that worked by the casual employee with the exception that shifts could not be cancelled because of unforeseen events in the same manner as they can be for a casual employee. The work of a full-time employee must be regarded as regular and systematic;
    • There was some system to the employment the casual employee could expect to be offered work each week. The amount of work would vary depending upon client needs but it did generally happen each week. Apart from one or two weeks in 21 months the only weeks the employee did not work were when he requested and was granted leave of absence for his wedding and during the slow-down in work over the Christmas and New Year period;
    • A pattern or system was clearly established where the casual employee would be offered work regularly when there were client demands and he would accept that work;
    • The casual employee generally worked as part of a regular crew and had a reasonable expectation he would work from Sunday to Thursday. The work tended to be planned in advance and the labour requirements would be known in advance but subject to the occasional change in case of inclement weather or other events. The casual employee did not need to be told each and every day that he would be required for work in these circumstances. This adds to the evidence of a regular and systematic basis for the employment';
    • There was a clear pattern of work being offered with reasonable frequency and of the work being generally accepted;
    • The employer had a reasonable expectation that the casual employee would work when work was offered. The pattern of offer and acceptance could not be described as informal, irregular or occasional;
    • It is not necessary to establish that shifts and start and finish times are regular or rostered to establish that the employment is on a regular and systematic basis;
    • During the period of employment there was a reasonable expectation of ongoing employment having the same pattern as previous employment and this was the case up to the events that led to the ending of the employment relationship;
    • The evidence of what actually happened supports the finding that there was a reasonable expectation of ongoing employment on the same basis as had been occurring during the period of employment.
The recurring factors in this particular case are that the casual employee was regularly offered work when it was available and he came to expect that. It should also be noted that FWA takes into account what actually happened during the period of casual employment, rather than the intention of the parties when the employment relationship commenced.

 

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