Business Clients – Tips and Traps on Employment Contracts

November 2018 | General

Part 2 – Is a Casual Employee a Casual Employee?

Do you employ casual employees? If so, this article is for you.

Employee entitlements, National Employment Standards, Federal Employment Awards, Industrial Relations regulations and Union Representatives – these things combined create a minefield for business owners at the best of times. But recently, things have become even more complicated.

What happened?

A recent Federal Court decision in the case of Skene v Workpac Pty Ltd has set a new precedent: publishing a long-term, predictable roster, coupled with insufficient narration on a payslip, can create all sorts of unexpected obligations and costs to employers. Under some circumstances, casual employees may now be entitled to a range of benefits previously reserved only for permanent staff.

The full court judgement in the case of Skene v Workpac Pty Ltd can be found here, but in summary, the key points of the court’s decision were based on what is considered the “essence” of casual employment.

“…the predominant and essential indicator of casual employment is the absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work”

It is this “essence” which forms our critical caution point to clients. Specific consideration needs to be given to the National Employment Standards, its definition of casual employment, and the pay loadings attributable to it. Of utmost importance is how the employee’s remuneration is described on routine payslips.

In our experience…

For at least five years, unions have been lobbying governments and business owners to offer permanent status benefits to employees on casual agreements. While it’s understandable that unions might try to secure the best deals for their members, this would severely limit business owners’ options around flexible staffing arrangements, presenting them with significant costs and legal obligations. However, these issues can be avoided if employment agreements are drafted correctly.

What does this mean for you?

If you employ staff on a casual basis and have not tailored your employment agreements to address the above concerns, we strongly urge you to contact AustAsia to discuss updating your employment contracts.

By reviewing your contracts now, you may be able to protect yourself – and your business – from being blindsided by a costly claim, such as the one Workpac has incurred, in the future.

Should you have any further enquiries, please don’t hesitate to contact us on (08) 9227 6300 or

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