HR Tips & Answers

Casual employment – changes you need to know!

There is a NEW definition of “casual employee” and we will all need to bear this in mind if they form part of our usual workforce.

The new section 15A of the Fair Work Act defines a person as a “casual employee” where:

  • An offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and
  • The person accepts the offer on that basis; and
  • The person is an employee as a result of that acceptance.

Under the new section 15A(2), the determination of whether a “firm advance commitment” was made will focus on the following considerations only:

  • Whether the employer can elect to offer work and whether the person can elect to accept or reject work.
  • Whether the person will work only as required according to the needs of the employer.
  • Whether the employment is described as casual employment.
  • Whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

Section 15A(3) makes it expressly clear that a regular pattern of hours, without more, will not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.

It is still critical for employers who wish to create casual employment arrangements to ensure that their casual contracts clearly identify the employee as a casual employee, with no firm advance commitment for continuing work according to an agreed pattern of work.

Contracts of employment for casual staff

Given the legal position now appears to be settled from both a legislative and common law perspective, how can employers best protect themselves?

In short, by implementing written contracts of employment that:

  • Clearly designate the employee as a casual worker by reference to the definition of a “casual employee” in the Fair Work Act; and
  • Specify the employee’s payment arrangements, including a clause that casual loading is payable.

If you have already updated your casual contracts in line with the new definition of “casual employee” as per section 15A of the Fair Work Act earlier, there is likely no need to make further contractual changes in response to the High Court’s Decision.

If you are an employer who has not reviewed the terms of your casual contracts for some time (and particularly if you don’t have written contracts for your current casual employees), you should seek advice from WorkBetter as a matter of priority.

Casual Employment information sheet

When employing a new casual employee, you must give them 2 important pieces of information along with their Casual contract of employment prior to them starting:

  1. The Casual Employment Information sheet, and
  2. The National Employment Standards (NES) Information

So, what to do if you have current casual staff?

By 27 September 2021, employers (other than small business employers) need to assess whether any of their existing casual employees who were employed before 27 March 2021, are eligible to be offered the opportunity to convert to permanent employment.

To see if this applies to you review the following page from Fair Work.

So, if you need help with contracts of employment or you need to discuss your personal situation, just give us a call.

As always we are here to help and if you would like to know more call Leisa and the WorkBetter team on 02 6009 1000


Published: Tuesday, September 7th, 2021

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