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Casual employees

The meaning of a casual worker is specifically defined in the Fair Work Act 2009 (Cth).

A person is a casual employee of an employer if [s 15A(1)]:

  • an offer of employment made by the employer to the person is made on the basis that 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 is an employee as a result of that acceptance

In determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations [s 15A(2)]:

  • whether the employer can elect to offer work and whether the person can elect to accept or reject work;
  • whether the person will work as required according to the needs of the employer;
  • whether the employment is described as 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 instrument

Under Division 4A of Part 2.2 of the Fair Work Act 2009 (Cth) a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full-time employment or part-time employment. Small businesses with than 15 employees do not have to offer casual conversion, but an employee can make a request themselves in certain circumstances. All employers need to provide their casual employees with the Casual Employee Information Statement (including new employees) that outlines casual conversion requirements [see s 15A(2)].

A regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work [s 15A(3)].

The question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party [ s 15A(4)].

A casual employee usually works on an irregular basis and may or may not be offered work which in turn he or she has the option to refuse. Workplace agreements and awards often contain provision for casual employees. However, many workers are called 'casual' when in fact they are part-time or full-time employees, with an advance commitment to ongoing employment. If an employee has regular work and there has an been an advance commitment to ongoing employment, then they may not be true casual workers and should seek further advice about their entitlements.

As a general guide, casual employees:

  • have the right to access a pathway to become a permanent employee (casual conversion) under the National Employment Standards
  • are not entitled to holiday pay, sick pay, or payment for public holidays not worked;
  • should be paid an extra ‘loading’ (25% extra in compensation for not getting annual and sick leave);
  • are entitled to workers compensation;
  • are protected by anti-discrimination laws;
  • may be entitled to long service leave if their employment has been constant;
  • have the right to make an unfair dismissal claim if they have been employed as a regular casual employee for the minimum period; and
  • should receive superannuation payments (11% on top of pay - as at 1 July 2023) - the requirement to earn at least $450 per month was removed on 1 July 2022 [Superannuation Guarantee (Administration) Act 1992 s 19(2)].
Casual employees  :  Last Revised: Wed Jun 29th 2022
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.