f-employees/casual-part-time-and-full-time/casual-employees" rel="nofollow"> casual workers are entitled to benefits and workplace rights. The law says employees cannot be treated differently or worse because they possess or have exercised a workplace right or for a discriminatory reason. Yet, casual employees are still treated less favourably compared to permanent workers. For instance, wage theft and underpayments are prevalent in casual employees, with 21 per cent in retail, hospitality, construction and healthcare. It’s no wonder we’ve seen so many legislative reforms to protect casual workers, causing headaches to many employers who are doing the right thing by their people.

To prevent yourself from landing in hot water, if your business employs casuals or you’re thinking of employing casuals, here are some things to consider.

What the law says about casual employment 

The Fair Work Act 2009 (Cth) (FW Act) now defines a casual employee as a person who is offered and accepts employment knowing that there is no firm advance commitment to ongoing work with an agreed pattern of work.

Changes to FW Act relating to casual employment became law on 27 March 2021. The changes came about from Federal Court decisions that highlighted the risk that employees initially employed as casuals may actually be permanent employees — which means they would be entitled to leave and other entitlements.

Employers must provide casual employees with the Casual Employment Information Statement before they start. The document sets out the new casual provisions of the FW Act.

It’s unlawful to take adverse action against a casual employee

Casual workers who have concerns about attending work are particularly vulnerable because they are not guaranteed ongoing work, but many employers need to be aware that casuals are still protected from adverse action.

The very nature of casual employment is they can turn down and swap shifts. If a casual employee provides a reason for not wanting to work, managers should carefully consider it and take the appropriate action to not discriminate against the employee. For example, the employee may have concerns for their health and safety because they have a medical condition.

If the casual employee has caring responsibilities, under the FW Act, casual employees are entitled to 2 days of unpaid carer’s leave. If the employee has caring responsibilities, it is unlawful to take any adverse action against them because of their caring responsibilities.

Casuals can still claim unfair dismissal 

Many employers may assume that casual employees cannot claim unfair dismissal. While claiming unfair dismissal is more arduous for casual employees, in some circumstances — such as if the casual employment is regular and systematic — they may be able to make a claim.

To access the unfair dismissal jurisdiction, the FW Act says the casual employee must have:

●   Worked the minimum employment period of six months (or one year for a small-business employer); and

●   Be under a modern award or enterprise agreement and earn less than the high-income threshold.

The Fair Work Commission has a lengthy database of casuals claiming unfair dismissal, such as Angele Chandler v Bed Bath N’ Table, where the commission ruled the dismissal as unfair.

Let’s not forget mental health

While everyone’s replaceable in the workplace, anyone who has gone through recruitment will know how tough it is to attract and retain good people. Expecting casuals to be constantly available and taking numerous shifts is not only unhealthy, it will also likely adversely affect the engagement and performance on the job.

The pandemic is a reminder of how critical it is to have secure employment that is ongoing because casual workers are the first to be let go. Due to the nature of casual work, irregular payment for work and finances adds to the continual stress and anxiety. 

Employers must ensure that they place the same value and emphasis on looking after our mental health and wellbeing — regardless of the type of employment.