Be aware of your casual employees' rights: lawyer


Be aware of your casual employees' rights: lawyer

Anti-discrimination law still offered the best protection for casual workers, although industrial legislation was fast catching up, and employers should be aware of all the ramifications, a Sydney conference heard this week.


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Anti-discrimination law still offered the best protection for casual workers, although industrial legislation was fast catching up, and employers should be aware of all the ramifications, a Sydney conference heard this week.

Penny Thew, a lawyer with Cutler Hughes and Harris, told a briefing presented jointly with ACIRRT that while casual workers could not always access unfair discrimination remedies, other forms of relief were available like carer’s responsibilities provisions in the NSW Anti-Discrimination Act (see previous stories, 3 and 38/2001).

Answering the question of whether an employee could make an application for unfair dismissal if their job had changed to a permanent position, and they refused that job, Thew said it depended on the reason for their refusal.

If they could not take on a permanent job because of responsibilities to children or an aging relative, rather than just a desire not to work full-time, they could have a case under the legislation.

Similarly, Thew pointed to the landmark case involving 14 casual teachers who were awarded  payouts of nearly $250,000 for Education Department breaches of the State’s Anti-Discrimination Act (see 52/2001). She said that case was a timely warning that where the criterion of permanency impacted on salary and benefits, it was potentially a form of discrimination.

The most important thing when hiring employees was to make it clear at the start whether they were being hired as a casual, she said, and to understand the ramifications of that. Thew warned that the label an employer attached to an employment relationship was not the essential indicator.

With a greater body of case law building up to support the rights of long-term casuals, tribunals were increasingly clarifying what they looked for when identifying whether workers were casual or not. With only long-term casuals able to access federal unfair dismissal remedies, the bench was now asking the following questions to determine whether employment was regular and systematic, with an expectation of continued work:

  • Was there a clear understanding the employee would be available for work on a regular and continuing basis?
  • The number of hours worked per week;
  • Whether the employee worked according to a roster system that was published in advance;
  • Whether the employment pattern was regular;
  • Whether notice was required prior to the employee being absent or on leave;
  • Whether the employee reasonably expected that work would be available;
  • The length of service undertaken by the employee;
  • Whether the employee was required to maintain his or her availability on the roster;
  • Whether the employee was required to obtain permission before undertaking other employment.

When the answers were predominantly yes, the employees were likely to have much more industrial protection. ‘Casual employees are of such relevance in the modern workplace that substantial case law has sprung up around them, and the changes mean improvements in employment benefits for those workers,’ Thew said.

Thew cited as examples the federal metalworkers’ case – which gave workers the option to convert to permanency after six months’ employment (see 2); and the federal parental leave test case – in which workers with more than 12 months’ regular and ongoing employment were eligible for 12 months’ unpaid parental leave (see 115/2001). This was expected to be flowed on to Queensland and NSW, which currently allow casuals to access parental leave after 24 months.


ACIRRT is also presenting its annual labour law conference in Sydney next Thursday, 28 June, covering topics including privacy, OHS, and employee entitlements.

For more information on the ACIRRT conference, go to our Calendar of Events page.
Change of employment status can be discriminatory
Note: a 2009 case emphasises that employers need to be careful in changing an employee’s status. The AIRC has ruled that an employee who had lost her place at the top of an internal eligibility list (with the Authority giving no explanation as to why this happened) was the victim of discrimination. Commissioner Tabbaa ruled that she should have been offered permanent employment and that the failure to do so constituted unfair dismissal. She said the letter of appointment clearly stated that the temporary position would only cease if the incumbent were to return from extended leave and that did not occur.
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