With the firehose of terrible news gushing from the mainland and its COVID lockdowns, human misery in Afghanistan and localised business downturns across some sectors, you could be forgiven for having missed a critical HR decision handed down by the High Court of Australia recently. It’s important because of the increasing casualisation of the workforce and by an increase in underemployment; trends that have increased over the past 18 months as employers have had to grapple with changing economic conditions. Sectors such as Hospitality, Tourism, Agriculture, Arts & Events rely on armies of casual employees and may not be across the newest legislation.

The detailed findings of the ruling are here as interpreted by law firm Minter Ellison. It’s a longish read, but its theme is that casual employees need and have a right to predictability in the employment contracts issued at the commencement of employment. At first, that seems at odds with the whole idea of ‘casual’ employees, right?  The devil is in the details. It’s not about the predictability of shift entitlements; it’s about predictability in the nature of the employee engagement. Very meta!

The recommendations for those who employ casuals are to review those employees’ contracts to ensure they satisfy the casual definition test. They should contemplate matters such as:

  • Written contracts with a specific casual engagement statement – Employers might provide a written employment offer for casual employees and include a statement such as, “This is an offer of casual employment, as such we are unable to give you a firm advance commitment to continuing and indefinite work”.
  • Expressly state that a casual loading is being paid and what it covers – within the written casual contract, include a statement such as, ” a casual loading is being paid in lieu of all entitlements that would otherwise apply if the employee were not a casual. This includes, but is not limited to, personal and annual leave.”
  • Casual loading is separately identified in payments – is advisable that you can clearly identify that a casual loading has been paid within the remuneration and as such there is no entitlement to leave payments. Ideally this should have been stated within the initial employment letter and preferably a casual loading payment should be identified in the employee’s payslip advice.    

This comment is provided for the benefit of Chamber members, but we encourage you to consult with an HR professional or employment law specialist to ensure your contracts are adequate. 

Chamber Platinum Member, Simmons Wolfhagen Lawyers, have a team of experienced employment lawyers.

Chamber Gold Member, Bishops Barristers + Solicitors, offer employment law services.

Chamber Gold Member, Quartz Consulting are your local, leading provider of workplace relations consultancy services.

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