Casual employment - employer questions about  WorkChoices

Q&A

Casual employment - employer questions about WorkChoices

Casual employment under WorkChoices needs careful attention. Here are some questions and answers addressing public holidays, casual conversion and minimum payments.

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Casual employment under WorkChoices needs careful attention. Here are some questions and answers addressing public holidays, casual conversion and minimum payments.

This is another in a series of articles on the most commonly asked questions by employers on aspects of the WorkChoices legislation. It is intended that this series will assist employers in understanding the complex issues raised by the new legislation and, in some instances, highlight areas that may require further legislative amendment or may be potentially areas of future legal challenge.

As with all articles with respect to WorkChoices the commentary is based on the presumption that the employer is a constitutional corporation, unless otherwise specified.

Casuals and public holidays

Q. We have a number of casuals employed under a pre-reform federal award (clothing industry award) and a NAPSA (NSW clerical award). Both awards prescribe a minimum payment for each engagement. I've been told this provision is no longer enforceable as it is a 'non-allowable award matter' Is this true?

A. This is an area of some doubt, however the public holiday provisions in WorkChoices do not specifically exclude casual employees from the entitlement to a day off with pay.

The drafting of this section could be construed to provide an entitlement to a public holiday for any casual employees who work a set day or days of the week, regardless of their employment status.

Under WorkChoices casual employees certainly have the right to reasonably refuse to work on a public holiday, specific reference is made to this category of employee in the relevant section of the Act.

Q. We have a number of casuals employed under a pre-reform federal award (clothing industry award) and a NAPSA (NSW clerical award). Both awards prescribe a minimum payment for each engagement. I've been told this provision is no longer enforceable as it is a 'non-allowable award matter' Is this true?

A. WorkChoices does provide protection for casual employees in this situation although the reasonableness of the refusal is subject to the specific circumstances surrounding the employee's refusal to work.

WorkChoices also requires that an employer is not to prejudice the employee for a reasonable refusal to work the holiday, such prejudicial conduct includes dismissal, injuring an employee in his or her employment, or altering the position of an employee to the employee's prejudice.

Casual employment conversion

Q. We have a number of casuals employed under a pre-reform federal award (clothing industry award) and a NAPSA (NSW clerical award). Both awards prescribe a minimum payment for each engagement. I've been told this provision is no longer enforceable as it is a 'non-allowable award matter' Is this true?

A. Not in the case of a NAPSA. WorkChoices only identifies this provision as a 'non-allowable award matter' with respect to a pre-reform federal award.

The majority of conditions contained in a NAPSA (ie the contents of a State award as at 27 March 2006 that became a federal agreement), including casual conversion, are still enforceable unless a new workplace agreement is negotiated. The list of terms described as 'non-allowable award matters' prescribed by WorkChoices do not affect the conditions contained in a NAPSA.

Casual employment - minimum payment

Q. We have a number of casuals employed under a pre-reform federal award (clothing industry award) and a NAPSA (NSW clerical award). Both awards prescribe a minimum payment for each engagement. I've been told this provision is no longer enforceable as it is a 'non-allowable award matter' Is this true?

A. This is a situation where WorkChoices can create confusion for an employer. 'Allowable award matters' are only applicable to the provisions of a pre-reform federal award.

In this case, the minimum engagement provisions under the clothing industry award would not be enforceable, however the minimum engagement provisions under the state clerical award are 'preserved' (because it is a notional agreement preserving state awards), and must be complied with by the employer.

Anecdotal evidence suggests employers faced with this situation continue to observe the minimum payment provisions in the respective pre-reform federal award to avoid inconsistency.

An employer who continues to apply award conditions that are 'non-allowable matters' would not be in breach of WorkChoices, although the employer is not compelled to observe these conditions.


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