Casual employment

Casual employees have no guaranteed hours of work each week, they can be terminated with minimal notice and they are excluded from many entitlements afforded to permanent employees. As compensation for the unpredictably of their work and lack of entitlements, casuals are paid a special loading on top of their ordinary rate.

There is no definition of a “casual employee” in the Fair Work Act 2009 (Cth) (FW Act) and the term takes its ordinary common law meaning: WorkPac Pty Ltd v Skene [2018] FCAFC 131.

Whether an employee is a casual employee will depend upon the substance of the engagement, rather than its form or appearance. This requires an objective assessment of the nature of the employment as a matter of fact and law having regard to the circumstances.

If a ”casual" employee is paid a casual loading but it later determined by a court to be an ongoing employee at common law, it is currently unclear whether that loading can offset unpaid employee entitlements which have not been accrued or paid. This issue is being agitated in Workpac v Rossato [2018] FCA 2100. Regulation 2.03A of the Fair Work Regulations 2009 (Cth) will operate to prevent this “double dipping” if the requirements of that regulation have been met.

See Casual employment.