Casual ‘double-dipping’ overturned by High Court ruling

Keeping it casual

Last year the Federal Court ruled that casual employees working regular and systematic hours should be treated as permanent staff and owed permanent entitlements. Today the High Court overturned the Federal Court’s decision and ruled that casual workers are not entitled to paid leave while they are on casual contracts.

What this means for employers

This means that the definition of a casual employee will be in line with what the original Fair Work Act definition for a casual employee is.

Practical steps employers can take

Ensuring casual employment contracts specify there is no entitlement to ongoing and regular and systematic work. Ensure employees are compensated with the 25% casual loading in lieu of annual leave and sick leave entitlements.

  • Comply with relevant Modern Award casual conversion clauses and document all conversions with employees who elect not to convert to part-time or full-time employment when offered.
  • Provide every new casual employee a Casual Employment Information Statement (the CEIS) before or as soon as possible after they start their job.
  • Comply with upcoming relevant Modern Award casual conversion clauses. From 27 September 2021, the Fair Work Commission will make changes to all Modern Awards in relation to the casual conversion process to align the changes inserted in the Fair Work Act in March 2021 because of the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021.
  • Offer casual employees part-time or full-time positions when they become available, again documenting all related correspondence.
  • Where possible, limit rosters to weekly or fortnightly.
  • Ensure employees tender their availability for rosters as to give casual employees control over when they work.
  • Have employees tender their availability and provide shifts using a workforce planning model that limits regular and systematic hours.
  • Having a statement on all rosters stating that casual hours are not a guarantee of ongoing, regular and systematic work. Furthermore, it can be changed, varied or cancelled dependent on operational requirements and staffing levels.
  • Ensure pay slips specify payment of the 25% casual loading.

This information was originally published by CCIQ

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