Hiring casual workers over summer can be a great way to take advantage of increased foot traffic. But workplace law specialist Bianca Seeto says employers need to be aware of their obligations.
Whether you’re a small or larger business, engaging a casual workforce can work wonders for you. It can increase your staffing levels during your busiest months while providing the ability to reduce wages when times are tough. Before hiring casuals, though, employers should be mindful of the law.
Make sure you have well-drafted casual employment contracts in place, and that they clearly indicate that the casual is to be paid a casual loading and has no access to paid annual leave, paid personal leave, notice of termination or redundancy entitlements. It should also be clear that as a casual employee there is no guarantee of hours.
Under the relevant award or agreement, casual employees are entitled to a higher base rate of pay to compensate them for not accruing certain entitlements such as annual leave or paid personal leave.
For example, the casual loading under the Hospitality Industry Award 2010 is an additional 25 per cent on top of the permanent rate of pay.
Check with your award or enterprise agreement for details on your requirements as the loading may vary.
In most instances, casual employees shouldn’t be working set rosters for an ongoing period. Issues can arise when some casuals are working full-time equivalent hours, and working the same regular shifts for a long period of time. If this is the case, some casual employees may push back and claim that they were in fact misclassified and were actually part-time or full-time and therefore should have access to annual leave, paid personal leave or redundancy entitlements.
Follow this simple rule: If the employee looks like a casual, acts like a casual and is paid like a casual, it’s likely that they will be deemed a genuine casual employee.
Be aware that there are minimum shift requirements under some awards and agreements. For example, under the Hospitality Industry Award 2010 it’s required that casual workers be paid for at least two hours of work per shift. This minimum shift requirement for casuals increases to three hours under the General Retail Industry Award 2010 (note: different arrangements may apply to secondary school students in limited circumstances).
Refer to your award or enterprise agreement for details.
In some instances casual employees have a right to convert to part time or full time status after a certain qualifying period of employment. Again, check your award or enterprise agreement to see if this applies. There may be an option for the business to refuse this request but only on what are deemed “genuine business grounds”.
There are changes coming to most awards in this space, so be sure to keep up to date with a legal professional.
Bianca Seeto is a Partner and solicitor at FCB Workplace Law. For more information on casual employees or any other workplace matters, please don’t hesitate to contact her on 07 3046 2100 or email bls@fcbgroup.com.au.
