Being a casual worker in Australia is extremely confusing and can often lead to questions about your entitlements at work. The main issue most people find themselves facing is – What makes me a casual worker?
The Australian Government has attempted to clear things up for casual workers by passing the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021 (the Bill). The Bill makes a number of changes to the Fair Work Act 2009 (Cth) (the Act).
The Bill proposes a new definition for casual workers, being:
(1) A person is a casual employee of an employer if:
(a) An offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person
The Bill refocuses determination of employment exclusively on the initial offer of employment and surrounding factors. Section 15A subsection (2) provides an exhaustive list of factors to consider while subsections (3) and (4) expressly negate Skene (regular pattern of hours) and Rossato (conduct throughout employment) arguments:
(3) To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.
(4) To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.
This new statutory definition of casual employment and exclusive regard to the initial offer of employment applies to both new casuals, and retroactively to existing workers. This means that if your existing employment relationship meets the statutory definition, you are taken to be a casual from 27 March 2021.
