‘Casual’ employment under the federal act

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‘Casual’ employment under the federal act

"In my opinion, a casual employee for the purposes of regulation 30B is an employee who is, from time to time offered employment for a limited period on the basis that the offer of employment might be accepted or rejected but in circumstances where it could be expected that further employment of the same type would or might be offered and accepted but there was no certainty about the period over which it would continue to be offered."

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"In my opinion, a casual employee for the purposes of regulation 30B is an employee who is, from time to time offered employment for a limited period on the basis that the offer of employment might be accepted or rejected but in circumstances where it could be expected that further employment of the same type would or might be offered and accepted but there was no certainty about the period over which it would continue to be offered."

In Reed v Blue Line Cruises Ltd (960571), Moore J of the federal Industrial Relations Court was required to decide whether an employee who was employed as the master of a vessel cruising Sydney Harbour was a ‘casual employee’ for the purposes of the Industrial Relations Act 1988.

[Note: Moore J’s decision remains instructive because the regulations dealing with casual employment under the Workplace Relations Regulations are the same as existed under the Industrial Relations Regulations, except that the maximum exclusionary period has been extended from 6 months to 12 months.]

Moore J noted that the term ‘casual’ employee for the purposes of the Actis not based on Australian domestic law (which has no fixed meaning for the expression ‘casual employee’ or ‘casual employment’) but upon the relevant ILO Convention.

Moore J, upon examining the Convention, held that ‘casual employment’ for the purposes of the Actis employment which is known to the parties, at the time of engagement, to be ‘informal, irregular and uncertain and not likely to continue for any length of time’.

Looking at the matter at hand, Moore J held that the employee was not a casual, principally because it was a feature of the employee’s employment that he would do the work he was allocated (subject to the employer accommodating his other employment commitments). It was not a situation where the employer would offer work and the employee could accept or reject that offer

Further, ‘though limited support’ for the view that the employee was not a casual was derived from the following circumstances:

  • a clause in the agreement between the parties required termination by notice which was suggestive of a formal arrangement; and,
  • the employee worked according to a roster, and this regularity indicated that the relationship lacked the informality necessary for casual employment.

For these reasons, Moore J held that the employee was not a casual and was therefore not excluded from seeking a remedy under the Act.

 
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