The following advice was received as a result of the recent Rossato case which upended the way the courts view casual employees. As an employer, you should look at your casual arrangements and decide what to do about them.
In a nutshell:
- Be aware that employees have a right to request casual conversion after 12 months employment and subject to ‘reasonable business’ grounds they are entitled to convert.
- School bus drivers, operating 40 weeks a year, probably do not have that right to convert for reasonable business grounds.
- Be careful, when employing casuals, that you stipulate clearly that they are employed as casuals and that they are paid a loading to cover leave and termination entitlements.
- Try to note on payslips the breakdown of the casual loading component.
- Existing casual employees should be offered the opportunity to be considered for conversion. If they have a ‘firm advance commitment’ of work for the entire year they should be encouraged to convert.
- You should clearly note if a casual employee does not want to convert.
As well as the above, Ian MacDonald (APTIA) suggests that you sit tight and wait for the High Court Appeal on Rossato, and also for the draft definition of a casual which (he hopes) will be designed to protect your circumstances.
Background information on Rossato
What is the WorkPac v Rossato case?
Mr Rossato was employed as a casual employee of labour hire company WorkPac between July 2014 and April 2018.
Because he was classed as a casual, he was paid a higher rate for every hour he worked. However, Mr Rossato worked on rosters, sometimes created 12 months in advance, and he worked full time hours on those rosters.
The WorkPac v Rossato case ruled that he was not a genuine casual, but a permanent employee. He was therefore entitled to paid annual leave, personal leave, and compassionate leave.
This case followed on from a similar case in 2016 (WorkPac v Skene) which led to debate about double dipping. In other words, where an employee receives a loading or higher rate as a casual, but then challenges their status as a casual employee and claims leave entitlements as well.
Will this law change?
An appeal has been lodged in the High Court that could overturn Rossato, so that workers who are designated as ‘casual’ can actually be considered casual employees. Also, legislation could be introduced to try to change the law retrospectively.