Casual Employment – discussions and recommendations
Earlier this year, the Federal Court found that some ‘casual’ workers may be entitled to paid annual, sick and carer’s leave under the current legislative framework. Currently, the Attorney General is conducting discussions with the trade unions and employer organisations with a view to reviewing that framework.
Through membership with BIC/APTIA and associated ACCI membership, Bus SA has contributed to the discussion. However, until discussions wrap up in October risks remain that those leave entitlements may still be claimed. To address this, we wish to share the following advice as gathered by BIC/APTIA.
In line with advice from KHQ Lawyers and Piper Alderman, members are strongly encouraged to undertake the following risk mitigation steps:
- Regularly review casual engagements within the workforce to identify patterns that may suggest permanent employment. Obtain advice about converting those employees to permanent employment arrangements and, if necessary, consider changing the makeup of the workforce to become less reliant upon casuals.
- Review employment contracts and payslips to ensure casual loading amounts are separately identifiable and that contracts have effective set-off clauses if employment changes to include unpaid leave provisions.
- Educate managers, HR, and payroll to ensure there is an understanding of how and when a casual employee may ‘merge’ into a permanent employee so that the nature of the relationship can be managed.
- Ensure casual arrangements reflect (at least) the types of distinguishing characteristics that were present in the Birner decision, such as variable rosters, no requirements to apply for leave and an ability to reject shifts.
- Keep an eye out for potential legislation and the impacts upon the workplace from such legislation, such as a definition of a casual employee.
- If school bus casuals cannot be accommodated as casual consider changing the Passenger Vehicle Transport Award 2020 to allow for a flexible part time employee along with annualisation of wages.
Attached is a summary of the legal advice, including details of the Birner case as referenced.