EMPLOYMENT STATUS

An Employer’s decision to employ a person can depend on the nature of their business as well as the nature of the considered role with its accompanying duties and responsibilities.  Such a decision will impact upon the employment status of the incoming employee: casual employment, part-time role or a full-time role (or a fixed term role). This paper focuses on the first 3 roles.

Whether to employ a person as a casual employee, note the High Court decision of WorkPac v Rossato which included the key reference to ‘no firm commitment to ongoing work’ – an indicator of whether a person was employed in a casual role or not (e.g., permanent part-time of full-time).

In accepting  casual role, that employee then has a future right to convert to a permanent role. While able to convert to a permanent role (having been engaged in temporary employment at different stages in a 12 month period – see FWO), the employer can refuse such an application on reasonable grounds, although in the case of a small business, this is not so open.

Providing a casual employee with the Casual Employment Information Statement (see FWO), at the time of their engagement assists in information regarding any uncertainty as to their status and entitlements.

Whilst casual loading is to accommodate the non-access to leave provisions, a part-time employee is entitled to pro-rata entitlements of full-time employees (see Modern Award review – casual and part-time employment – [2017] FWCFB 3541 @ 86). A part-time employee is one who works less than 38 hours and who also works regularly such set hours. It is interesting to note the comments of the NSW Industrial Relations Commission in its 1998 State Part-Time Work Case ([1998] 78 IR 172 @ 206) to caution about exploitation: “ … enterprise agreements offered several years ago by … designed to avoid certain of the benefits attaching to full-time work by providing for part-time work of 37.5 hours per week“ .

Note the reference to a full-time employee by referring to the National Employment Standards.

Disclaimer: Richard Krajewski’s articles are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication.