Casual employees must know that they have ‘casual worker rights’ in order to protect themselves in the workplace. If you want to understand more about your rights at work, this article is just for you.
Australian casual employment is rampant and unreliable. However, many employees benefit from protective regulations and other program initiatives from the government.
One program that protects casual workers is the National Employment Standards (NES). This is the minimum employment entitlement that employers must provide their employees. This article will discuss more about casual employee’s rights under the NES in the later sections.
According to the Australian Bureau of Statistics (ABS), as of August 2023, there are 2.7 million casual employees who are not entitled to paid leave. This is the indicator that ABS uses to determine whether an employee is a casual worker or not.
Who Is a Casual Employee?
The Fair Work Act 2009 identifies a casual employee as such if the following conditions exist:
- The employer makes an offer of employment to the person. However, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and
- The person accepts the offer on that basis; and
- The person becomes an employee as a result of that acceptance.
Cassual workers receive a higher hourly pay rate compared to equivalent full time or part-time workers who are on the same job. This is referred to as casual loading.
The Act also enumerates the following parameters as to whether or not an employer is making a firm advance commitment to continuing and indefinite work based on a set of tasks involved in the job:
- Whether the employer can choose to offer work and whether the person can choose to accept or reject work;
- Whether the person will work as required according to the needs of the employer;
- Whether the employment is a casual employment;
- Whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work.
READ: Casual Employment Information Statement
Casual Worker Rights: NES Minimum Conditions
What are the minimum entitlements or casual worker rights under the National Employment Standards? Minimum entitlements are those rights or privileges employers must provide to their long-term casual employees.
However, casual worker rights under the NES are fewer compared to those who are working on a full-time or permanent status. These are the minimum entitlements for casual workers:
- Offers and requests to convert from casual to permanent employment
- Paid family and domestic violence leave
- Unpaid carer’s leave
- Unpaid compassionate leave
- Unpaid community service leave
- Long service leave for long-serving employees (NSW)
NES Casual Worker Rights: Explained
Casual Conversion
One of the casual worker rights under the NES is casual conversion. NES gives casual workers the opportunity to become permanent employees provided that they have worked for their employer for 12 months with regular pattern of hours. Moreover, they have to meet eligibility requirements to avail of this right. You can use this checklist and template letter when you request for casual conversion.
Paid Family and Domestic Violence Leave
Under the Fair Work Act, all employees, including casual workers, are entitled to a paid family and domestic violence leave of 10 days every year. An employee who is experiencing domestic violence is eligible to avail of this paid leave.
Unpaid Carer’s Leave
Casual workers are entitled to an unpaid carer’s leave of 2 days for every time an immediate family or household member of the employee requires care and support because of an illness, injury or emergency.
Unpaid Compassionate Leave
Casual workers may avail of an unpaid bereavement leave for 2 days. However, an employee may take this leave if their immediate family or household member dies, a baby in their immediate family is stillborn, they have a miscarriage, or their partner has had a miscarriage.
Unpaid Community Service Leave
Casual workers may take a leave for activities like voluntary emergency management or jury duty. This is known as the community service leave. However, for casual employees, this is an unpaid leave. The upside is that there is no limit on the number of community service leaves that an employee may take.
Long Service Leave For Long-Serving Employees (NSW)
In New South Wales, long-serving employees are entitled to a long service leave. Under the Long Service Act 1955, an employee who has been working for the same employer for 10 years can avail a paid leave for 2 months. This will be paid at the employee’s ordinary gross weekly wage under the said Act.
Casual Worker to Full-Time Worker
One of the casual worker rights mentioned in the previous section is casual conversion. How do you access this right and what are the important things that you need to know? This section will provide an overview on how to process casual conversion and what are the requirements that you need to comply.
The law requires that if an employee has been working for their employer for 12 months with a regular pattern of hours, their employer must offer them the option of casual conversion. However, if you’re a small business employer, you do not have to offer this option. But the employee may request you to convert their status to permanent employment.
The employer must:
- Make a written offer for casual conversion to the casual worker
- Make the offer within 21 days after the employee’s 12-month anniversary
The offer for permanent status may either be for:
- Full-time employment – employee must have worked for at least the last 6 months full-time hours, or
- Part-time employment – if employee worked for at least the last 6 months less than the full-time hours.
If you’re an employer, you can use this template to respondent to a casual conversion request. The employee must accept an offer of conversion within 21 days after receipt of the offer. If not, there will be an assumption by the employer that the employee declined the offer.
After the employee accepts the offer, a discussion between the employer and employee will take place. The discussion will include the following matters:
- type of ongoing employment (full-time or part-time)
- hours of work as a permanent employee
- start date as a permanent employee.
- If it’s possible to request flexible working arrangements
Discuss Your Case with an Employment Lawyer
Casual worker rights are still employee rights and employment lawyers can protect those rights for you. Since the NES and the law provide for just a few casual worker rights, you, as a casual worker may be more vulnerable to workplace discrimination and abuse.
If you’re an employer looking to protect your business and reputation due to employee complaints, our lawyers at JB Solicitors can surely work out a strategy or an agreement that will benefit your company while complying with the rules and regulations.
Schedule a consultation with us today to know more.
