Long term regular and systematic casual

Public news

The phrase ‘long term casual on a regular and systematic basis’ is one that carries a lot of connotations, but unfortunately carries potentially different approaches to interpretation depending on the exact application of the term.

One common use is to describe where a long term casual (in this case over 12 months) may be eligible to bring a claim for unfair dismissal. More recent case law has indicated that this merely requires a ‘genuine expectation of ongoing employment’, that is an expectation of some ongoing hours, not necessary the same or a consistent pattern of hours.

A different approach is taken in considering casual conversation in modern awards, and more recently the casual conversion rights introduced into the Fair Work Act 2009. These require, generally, a similar length of service (although some awards shorten this to 6 months), but also requires a regular pattern of hours which could readily be converted into a permanent role. This is, of course, different from the above approach.

Of course, in recent times we have seen cases where the concept of a ‘regular and systematic casual’ has been taken further by the courts, to find that employees defined as casual, but practically treated as permanent (regular pattern of hours and advance commitment of work), were found, in fact, to be permanent employees.

This last concern is addressed, in part, by the now legislated definition of casual employee, which states that at the time of commencement of employment, the offer does not include a firm advance commitment that the work will continue indefinitely with an agreed pattern of work.

Members are reminded that new and existing casual staff should be provided with the Casual Employment Information Statement.

If members need assistance with casual employment or casual conversion, please contact the WR team on wr@mtasant.com.au, or on 8291 2000.