Many small and medium employers think that employing a casual employee makes it easy to manage their workforce. But when they have a problem with that employee they find that the employee is claiming permanent employment status – and the law is on their side!
So how has this happened? How can a casual employee be a permanent, because after all their employment agreement says clearly they are casual. Sound familiar?
Simply put this situation is very common and it gets down to how the person is employed. A casual employee is a ‘pay as you go’ employee which means you pay them everything, including an additional 8% in lieu of accruing a leave entitlement. But a casual employee should only be employed ‘as and when’ you need them to fill gaps, and this is where many small and medium sized employers make their mistake.
Many assume that because the employment agreement says ‘casual’ that they can rely on this – you cant. The mistake happens when the causal employee is employed on a REGULAR shift on REGULAR days with REGULAR hours of work over an extended period of time, generally three months or more. Employing a casual in this manner establishes a pattern of regular employment akin to that of a permanent employee and which has the effect of changing the employment status from casual to permanent. It is for this reason the law sides with the employee.
If you are employing a casual employee in this fashion, then ‘vary’ their employment agreement and make them a permanent employee, part-time or permanent based on the REGULAR hours they work – rule of thumb, anything over 32 hours a week is permanent.
If you are considering employing a casual, make sure it is not a permanent employee you need. Identify how many permanent full time and part-time staff you need and use casuals to fill gaps when your permanent staff fall ill, or are on course or leave.
If you need help, please get in touch.