Most racing stables today turn to employing casual labour for the ease and simplicity that it can offer the business. However, do you know what defines casual labour? Can a casual employee ever be considered permanent? And if so, what financial impact will this have on the business and the individual? Read on for valuable information on this subject:
Are you too casual with casual employees?
Employers need to understand that by simply calling your employee a casual and paying them according to the recommended rate for a casual employee (which includes a 25% loading), does not make them a casual employee.
Being too casual with casual employees can prove financially disastrous.
If the employment is deemed not to be casual by nature, then the entitlements associated with Full time / Part time employment would apply. This would result in a liability for accrued annual leave entitlements along with other entitlements such as payment in lieu of notice, not to mention any pecuniary penalties e.g.: fines, that may also be applied.
The Horse & Greyhound Training Award 2010 (HGTA) is clear on the conditions of engagement for casual employment.
This is defined under Clause 10.4(b) Casual Employment, as follows:
(b) Casual employees may only be engaged in the following circumstances:
(i) to meet short term needs; or
(ii) to carry out work in emergency circumstances; or
(iii) to perform work unable to be practicably rostered to a permanent employee
Furthermore, Clause 10.4 (d) states:
A casual employee who has been employed on a regular pattern of hours in 12 consecutive weeks must, after that time, have the right to elect to be engaged as a permanent employee, if the employment on a regular pattern of hours continues into the next consecutive week. Any eligible employee that elects to convert must thereafter be treated for the purposes of this award as a full-time or part-time employee, as the case may be.
When does the relationship go from casual to permanent employment?
With the passage of time, a relationship can change to become one of permanent employment when the casual is performing their duties with regularity, which was a key factor in the following ruling handed down by the Federal Court.
In a decision of the Federal Court of Australia in Williams v MacMahon Mining Services Pty Ltd  FCA 1321, the Federal Court upheld the findings of the trial court which found that Mr Williams, a casual worker, was not a casual and as a result, was entitled on termination to pay in lieu of notice and payment for accrued annual leave. One of the key factors to support this decision was the regularity of Mr Williams’s employment.
This decision highlights the need to ensure that parties to an employment contract cannot simply call their relationship “casual” and expect their intentions to prevail, if a court does not regard the relationship to be truly ‘’casual’’.
In Ponce v DJT Staff Management Services Pty Ltd  FWA 2078, the Fair Work Commission established the following principles:
- a casual employee that works varying hours from week-to-week or month-to-month, and / or has different starting and finishing times, is not conclusive evidence of irregular, non-systematic employment
- unpredictable but frequent casual work may constitute regular and systematic employment
- if the number of hours worked are small, and the gap between days and times worked is long and irregular, this is evidence of an irregular and non-systematic casual employment
Often, Courts will look beyond the mere words of a contract/payslip advice etc. to determine the true nature of the relationship.
Can a Casual Employee Claim Unfair Dismissal?
Casual employees working on a regular and systematic basis are entitled to file an unfair dismissal claim, if their employment is terminated in circumstances they believe to be harsh, unjust or unreasonable. Equally, they will still need to have served at least the minimum qualifying periods before being entitled to file an unfair dismissal claim.
Employers are advised to frequently examine the casual employee’s pattern of work to determine the true nature of the employment. If you establish the existence of “consistencies” or “regular patterns” with their work performance in line with that described within the HGTA (2010), then you will need to revise the terms of engagement to ensure you are not in breach of your employer obligations.
If in doubt or in need of any assistance at any time on this subject, please do not hesitate to contact the ATA’s Industrial Relations Manager on (03) 9372-1688.