The status of your employment relationship is important. As a casual employee, you may not be entitled to a range of entitlements (e.g. paid annual leave, paid personal/carer’s leave, and paid public holiday entitlements under the National Employment Standards (NES)), certain employment protections (e.g. protection from unfair dismissal), and notice of termination or redundancy pay. Instead, casual employees are paid a casual loading (usually at least 25%) in place of these entitlements.
Note: The law on casual employment changed significantly on 26 August 2024 as part of the Federal Government’s “Closing Loopholes” reforms. This factsheet reflects the law as it currently stands. If you started as a casual employee before 26 August 2024 and have not changed to permanent employment, some transitional rules may also apply to you (see the box at the end of this factsheet).
How is a casual employee defined?
Under section 15A of the Fair Work Act 2009 (Cth) (‘FWA’), you are a casual employee only if, at the time you start employment:
- your employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and
- you are entitled to a casual loading or a specific casual pay rate under an award, enterprise agreement, or your employment contract.
Unlike the previous law (which applied before 26 August 2024 and looked only at what your employment contract said at the time you accepted the job), the current test looks at the real substance, practical reality and true nature of your working relationship — not just the words used in your contract. This means your employer can no longer simply rely on a contract that labels you as ‘casual’ if, in practice, your work looks like permanent employment.
What is a firm advance commitment to continuing and indefinite work?
A regular pattern of work hours is not, on its own, enough to show a firm advance commitment. In deciding whether a firm advance commitment exists, the following factors are relevant:
- whether your employer can choose to offer you work, and whether you can choose to accept or reject it (and whether this actually happens in practice);
- whether it is reasonably likely that there will be future work of the kind you usually perform, based on the nature of your employer’s business;
- whether there are full-time or part-time employees performing the same kind of work as you in your employer’s business;
- whether you have a regular pattern of work — even if that pattern changes over time (for example, due to illness, injury or other leave); and
- other relevant indicators, such as how the employment relationship is described and whether you receive a casual loading.
You do not need to satisfy all of these factors, and no single factor is decisive — it is a matter of weighing them up. Importantly, this assessment is no longer limited to the terms of your written contract. It can also take into account any mutual understanding or expectation between you and your employer that is not written into the contract, including how the contract has actually been carried out since you started.
I work regular hours. Why is this still casual?
A regular pattern of work does not, by itself, mean you have a firm advance commitment to ongoing work. Even if your employer regularly rosters you on, what matters is whether there is a real commitment from your employer to keep offering you ongoing, indefinite work — and whether you are genuinely free to accept or decline shifts. If, in substance, your role functions like a permanent position (for example, a fixed roster with no genuine ability to refuse shifts, and an expectation on both sides that the work will continue indefinitely), you may not be a casual employee under the law — regardless of what your contract says.
Why is the label of my employment as ‘casual’ important?
The description of your role as ‘casual’ in your contract is relevant evidence of what you and your employer intended, but it is not determinative. The Fair Work Commission and courts will look behind the label to the real substance and practical reality of how the relationship actually operates.
As a casual, do I have any employment protections?
Yes. Casual employees are still entitled to protections such as a safe workplace, freedom from discrimination (e.g. on the basis of age, sex, or disability), and unpaid parental leave. Where you are a long-term casual employee with a regular pattern of hours, your period of service may also count towards the minimum employment period required to access unfair dismissal protections, even though you remain a casual employee.
Can I convert from casual to permanent employment?
Yes — but the process changed on 26 August 2024. The previous ‘casual conversion’ system (where your employer had to proactively offer conversion) has been replaced with the ‘employee choice’ pathway under the NES. Under this new pathway, you, as the employee, can choose to notify your employer in writing if you believe you are no longer a genuine casual.
Am I eligible to give notice?
- You have been employed for at least 6 months (or 12 months if your employer is a small business with fewer than 15 employees); and
- you believe you no longer meet the current definition of a casual employee (i.e. there is, in substance, a firm advance commitment to continuing and indefinite work).
You cannot give a notice if you are already in an unresolved dispute with your employer about changing to permanent employment, or if, in the last 6 months, your employer validly refused a previous notice and no new circumstances have arisen.
What happens after I give notice?
- Your employer must respond to your written notice within 21 days.
- Your employer can only refuse your notice on limited grounds — for example, if you still meet the casual employee definition, if there are fair and reasonable operational grounds for refusing, or if changing your status would require a recruitment or selection process required by law.
- If you disagree with your employer’s response, you can raise a dispute — first internally, and then, if unresolved, with the Fair Work Commission.
You can also change to permanent employment at any time simply by agreement with your employer, without using the employee choice pathway.
If you were already a casual employee before 26 August 2024: you remain a casual employee under the new rules unless you move to permanent employment. Your period of casual employment before 26 August 2024 does not count towards the 6/12-month eligibility period for the employee choice pathway. If you are unsure which set of rules applies to you, our solicitors can help you work through your individual circumstances.
Where can I get help?
If you feel you are experiencing an issue relating to your casual employment status — including whether you have been correctly classified as casual, or whether you may be entitled to convert to permanent employment — solicitors at Marrickville Legal Centre can help you assess your employment status and your entitlements and rights.
