A common trend throughout the workforce is the ‘permanent casual’: a casual employee who works the same roster with little to no change for an extended period of time – usually over 12 months.

Although ‘permanent casual’ is not an employment type officially recognised by Australian law, the concept is a familiar reality for many Australians.

A recent case before the Federal Court suggests that casual employees may be eligible for permanent entitlements, such as leave and termination notice, if their working arrangements mirror that of permanent employment.

The case concerned a casual employee employed on a fly-in-fly-out (FIFO) basis at a Queensland mine. The employee worked off a roster that was set one year in advance and was permanent in every sense, except that his contract specified casual employment and he was paid the higher casual rate (‘casual loading’).

The Court considered the substance of the man’s employment and working arrangements in light of the definition of casual employment, as well as the National Employment Standards (NES) and determined that casual employees must have no firm advance commitment as to the duration of their employment, or the days or hours to be worked.

As such, the Court found that the man was not a casual employee.

The case highlights the importance for employers to be aware of the substance of an employee’s working arrangements, rather than just their contractual classification. This means that although an employee is classed as a casual in their contract, they may still be eligible for the entitlements enjoyed by permanent staff if they have worked regular, effectively ‘guaranteed’ hours for at least 12 months.

However, it is not yet clear whether such entitlements should be provided in addition to casual loading benefits as the Court was concerned that this ‘best of both worlds’ situation could create issues for employers.

Need help?

If you are unsure whether your employees have been characterised correctly, or if you are a casual employed on a permanent basis and have any questions in relation to the above, contact one of our experienced professionals for further information or submit an online enquiry today.

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