Casual employees - reminder for all employers!

Employment Law: 12 March 2025

Author: Bianca Mazzarella - Our People

Although 2024 might seem like a while ago now, there are a few things employers must remember when employing casuals.

There is a new casual definition under the Fair Work Act 2009 (Cth)

Under the new casual definition, the employee is only a casual if:

1. There is no firm advance commitment to definite and ongoing work; and
2. They are entitled to a casual loading or specific casual pay rate pursuant to an Award.

When assessing whether or not there is firm advance commitment to definite and ongoing work, the following factors should be considered:

1. Whether the employer can choose to offer or not offer work;
2. Whether an employee can choose to accept or reject work;
3. Whether the employee performs a regular pattern of work;
4. Whether other employees in the business perform a similar kind of work; and
5. Whether there will be ongoing work available with the nature of the business in mind.

Pathway to permanent employment

From  26 February 2025 and 26 August 2025 for small businesses, the National Employment Standards provide a pathway for employees to seek to become a permanent employee.

If an employee has worked the minimum requirements and no longer meets the definition of a casual employee they can provide their employer written notification of their intention to become a permanent employee.

An employer must respond to the written notification within 21 days of their decision to accept or reject the application for conversion to a permanent employee.

An employer may reject an employees application on the following grounds:

1. The employee still meets the definition of a casual employee;
2. Where it would be fair and reasonable to do so.

Casual conversion disputes

The Fair Work Commission can deal with such disputes via arbitration (if agreed to by both parties) or in accordance with dispute provisions under an Award (if applicable).

A Commission Member can order that the employee remain a casual or transfer to permanent employment.

General Protections claims

Employers must take care not to take adverse action i.e. reduce an employees hours, change their hours of work or terminate an employee’s employment to avoid or in response to an employee exercising their conversion rights.

Support for employers

For advice on the Fair Work Act 2009, contact Bianca Mazzarella on +61 3 8600 6000 or chat with us online.