The first thing to note is that there is no such thing as a ‘permanent casual’. This is a common misconception, but an employee is either one or the other, not both. A part time employee is a ‘permanent employee’ while a casual employee is, of course, casual.

Modern awards clarify how both casual and part-time employees must be engaged under that award. For most employees in a podiatry business, the relevant award is the Health Professionals and Support Services Award 2020, which states that a casual employee:

  •   Works on an hourly basis
  •   Can work up to and including 38 hours per week
  •   Is paid a 25% loading
  •   Must be engaged for a minimum of three hours each time they work.

Meanwhile, a part-time employee:

  •   Works less than 38 hours per week on a regular and systematic basis
  •   Must have a set number of hours per week, as well as set days and times at which those are worked.  These hours need to be agreed upon in writing before the employee commences employment.
  •   Can only work additional hours (up to and including 38) by written agreement.

Further differences between casual and part-time employees include:

#1 Job security

A casual employee should have no expectation of ongoing work. Rather, their work is more intermittent and they should only be engaged on an “as-needs” basis. A genuine casual employee should not be expecting to receive regular hours each week.

In comparison, a part-time employee should have agreed hours and days of work and there should be a clear expectation of an ongoing employment relationship.

#2 Paid leave

A part-employee is entitled to paid annual leave, as well as paid personal/carer’s (sick) leave. A casual employee is not entitled to either. While a part-time employee is entitled to paid compassionate leave, a casual employee is only entitled to unpaid compassionate leave.

#3 Notice of termination

While part-time employees are entitled to the notice provisions stipulated in the National Employment Standards (NES), the ‘as needs’ nature of casual employment means they are not entitled to notice of termination. This also applies to long term casuals, even if they have access to unfair dismissal.

#4 Redundancy pay

If a casual position is made redundant, the casual employee who held that position is not entitled to redundancy pay. Keep in mind, redundancy pay only applies if a practice has more than 15 employees.

Are there any similarities?

Parental leave

If a casual has worked for 12 months on a regular and systematic basis and has a reasonable expectation of ongoing work they will also be entitled to unpaid parental leave.

This means they will also have a return-to-work guarantee at the same or similar position after finishing their parental leave period.

Flexible working arrangements

Similarly, a casual employee who has worked regularly and systematically for 12 months can request flexible working arrangements.

Unfair dismissal

While traditionally a genuine casual employee should have no expectation of ongoing employment, if a casual employee has worked on a regular and systematic basis for six months they are entitled to make a claim for unfair dismissal if they feel they were unfairly dismissed. For small businesses, this must be for a period of 12 months.

Long service leave

While each state and territory has its own long service leave legislation and entitlements, casual employees are generally afforded the same long service leave entitlement as permanent employees.

Casual conversion

There were recent changes to the NES that allowed casual employees to convert to part-time employment if they meet certain criteria:

  •   For the past 6 months they have worked regular and systematic hours
  •   They have a reasonable expectation of ongoing employment
  •   Their hours would not change significantly should they transition to permanent employment

Within 21 days of their 12 month anniversary, an employer must inform a casual employee in writing whether they are offering the employee casual conversion, or declining to make an offer. An employer may only decline to offer casual conversion if the employee does not meet the requirements, or on reasonable business grounds – such as that the position will not exist in the next 12 months.

For small businesses there is no positive obligation to offer casual conversion, but any employee may still request conversion to permanent employment if they believe they meet the criteria.

Things to consider

The Fair Work Ombudsman is beginning to crack down on casual employees being treated as permanent without receiving the applicable entitlements. If you are unsure about how to engage a new employee, contact the APodA HR Advisory Service. Generally, an employer should consider the following:

  •   Will you require the employee to work regular and systematic hours? If so, engage as a permanent employee.
  •   Will you only require the employee to occasionally provide cover at busy periods/times where other employees are on leave? If so, engage as a casual employee.

Need more information?

For more information about this article, please call (03) 9416 3111 or email info@podiatry.org.au.  A suite of online resources is also available for members 24 hours a day, seven days a week here.

 

Disclaimer
The material contained in this publication is general comment and is not intended as advice on any particular matter.  No reader should act or fail to act on the basis of any material contained herein. The material contained in this publication should not be relied on as a substitute for legal or professional advice on any particular matter.  Wentworth Advantage Pty Ltd expressly disclaim all and any liability to any persons whatsoever in respect of anything done or omitted to be done by any such person in reliance whether in whole or in part upon any of the contents of this publication.  Without limiting the generality of this disclaimer, no author or editor shall have any responsibility for any other author or editor. For further information please contact Wentworth Advantage Pty Ltd.
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