You may have heard in the media “casuals now to receive annual leave and personal leave” it has created quite a stir. What have we learnt from the recent case law with WorkPac V’s Skeen in 2018 and the recent decision of WorkPac V Rosatto 2020?
Don’t be too alarmed, there are many things you can do to prevent a large exposure. Please also note Armadillo HR is a HR consultant, not a lawyer ;) below are some things you can do to help minimise your exposure to your business:
Review your casuals. If they have been working regular systematic hours with you for an unbroken period, they should be permanent employees. Consider offering them part time.
Add a calendar note or if your payroll/HR system allows, add a reminder for 3 or 6 months after a casual starts, to review if they should now be permanent.
Offer them permanent employment in writing… no they don’t need to accept it – but they should have a valid reason not to, you will then have in writing that you offered it, they refuse and understand that they remain a casual.
Check what you have in writing with the casual staff member, meaning their letter of offer, agreement, award, contract whatever you have. If you are unsure of this, contact us and we will help determine your award and discuss what you have in writing. In this document, it should be nice and clear that they are a casual and they are paid a higher casual loading to offset any entitlement to annual leave / personal leave. The issue with the recent case law was he was paid above the agreement rate and there was no express term in the contract. He was a long-term casual of 3.5 years, working regular shift work he had also requested during this time to be permanent.
Please seek individual advice for your personal business circumstance, but some model clauses (from FWC letter of engagement below), for letters of offer this could look like:
You will be paid at the rate of $<insert amount> per hour, including the applicable casual loading. (this “applicable % loading may change depending on your award and agreements in place)
If you have a common law Agreement, seek a quick review from an expert… a clause similar to:
The rate of pay includes a casual loading. As a casual employee, you are not entitled to a number of entitlements such as paid personal leave or annual leave and the casual loading is paid in lieu of these entitlements.
Remember true casuals should meet the following definition (excerpt from FWC website).
"A casual employee does not have a firm commitment in advance from an employer about how long they will be employed for, or the days (or hours) they will work. A casual employee also does not commit to all work an employer might offer.
For example, an employee who works to a roster that could change each week and can refuse or swap shifts is casual.
A casual employee:
· has no guaranteed hours of work
· usually works irregular hours
· doesn't get paid sick or annual leave
· can end employment without notice"
Taking the above ideas of some things you can do to help minimise your exposure to your business, there will be a clear understanding for casual employees in regard to their rights of pay and leave. This should also help businesses feel more at ease following the confusion created about causal employees and their rights.