Casual or part-time?

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The Fair Work Act does not contain a definition of what is meant by the expression “casual employee” but the distinction between a casual employee on the one hand and a permanent part time or permanent full time employee can be very important. For example, casual employees do not have access to the unfair dismissal jurisdiction of the Fair Work Commission (by casual service not counting towards the minimum qualifying employment period required to take unfair dismissal proceedings, s.384), nor do they accrue annual or long service leave. The true casual employee is an employee who is offered work as and when the employer has it, and the employee is just as able to decline the offered employment at his or her convenience. In return for the lack of security of regular work, and paid holidays, the casual employee is supposed to be paid a premium, typically some 20% above an hourly rate paid to a part time or full time employee.

All this is of course very trite, but in reality the overwhelming number of casual employees are not free to decline the offer of work when it suits them, and employers come to expect many casual employees to work a fixed and systemic range of hours.

What are the tests to apply when determining whether an employee is a casual in the eyes of the law or a full time or part-time employee? Some of the tests expounded by the tribunals and courts are (a) whether there is a mutual expectation of continued employment, (b) whether the employee’s hours of work are determined in advance, (c) whether there is a set starting and finishing time, (d) whether the employee is required to give notice when taking leave of absence, (e) whether the employee works a constant spread of hours; and (f) the employee’s length of service and the regularity of payment of wages.

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