It is the informality, uncertainty and irregularity that gives rise to the characteristics of being a casual.
In the recent decision of Williams v McMahon Mining Services Pty Limited  FMCA 511 the court held that as the employee’s work were performed according to a stable organised and certain roster, with certainty of working hours throughout the term of employment, he was not a casual worker.
There is however no one characteristic that makes an employee a casual and each case needs to be looked at on an individual basis.
Another older case is Licensed Clubs Association of Victoria v Higgins (1988) AILR497 where the court examined the following factors to determine what the ongoing relation was:
- the number of hours worked each week;
- whether a roster system is published in advance;
- whether the employment pattern is regular;
- whether the employee has an expectation of continuity of work;
- whether the employer requires notice before an employee is absent or on leave;
- whether the employee works to consistent starting and finishing times.
Implications for getting it wrong are significant. Apart from fines, there are also entitlements to personal leave, notice of termination, redundancy pay, annual leave and protection from unfair dismissal.
Employers should carefully consider when engaging a casual employee whether the employee can be considered a true casual. Employers should also review the employment contracts they use, particularly for casual employees, to ensure that they reflect the true legal relationship created.
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.
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