Casual or permanent – what is your employee status?

Employment status is significant when it comes to identifying the rights and benefits of being an employee. While it is important to be aware that there are three different categories of employment in New South Wales, all employees do have some rights and benefits when working for an employer. 

Initially, it is important to understand the different types of employee status. The three forms of employee characterisation are:

1. Permanent Full-Time Employment
2. Permanent Part-Time Employment
3. Casual Employment

A full-time permanent employment position will meet all of the following standard requirements:

• Expected and ongoing employment
• Regular hours averaging 38 per week
• Actual work hours are the culmination of an agreement between the employer and the employee
• The hours and type of work are determined by the industry standards
• There is usually a set award or agreement between the employer and the employee

In addition, a full-time employee also has many benefits. These benefits include; annual leave, personal leave, holidays, parental leave, superannuation, disability or long service leave and a notice requirement and severance package upon termination.

The second most popular form of employment is permanent part-time employment. For many, this is an excellent compromise for the rigours of raising a family, or attending school and working. However, the characteristics of part-time permanent employment differ from those of full-time employment. Some of those differences include;

• Working fewer than 38 hours per week
• Maintaining a relatively regular work schedule with regard to days and times expected to work
• Receiving benefits in a manner that is similar to a full-time employee but proportional according to the time actually worked
• Part-time employees still receive the minimum benefits with regard to holidays, leaves of absence, vacation time and sick time

The area of greatest growth, since the early 1980s, has been the employer’s use of casual employees. Casual employees are significantly different from either permanent full or part-time employees. As a casual employee, the worker is entitled to very little. The majority of casual employees range from age 15-24. This is a popular work choice for many young adults and students. The trades that benefit the most from the causal employee include retail business and the hospitality industry.

Both of these employment venues use many casual employees for a variety of duties and shifts. It suits the younger worker as it allows for tremendous flexibility in both scheduling and the types of available employment. And, while it might seem that causal employment leads to a great deal of turnover, it does not. Many of the casual workers stay with their employers for 12 months or more.

The main identifying factors of a casual employee include:

1. Work hours are not regular or guaranteed
2. Maximum of 38 hours per week and reasonable additional hours
3. The agreement between the employer and the casual worker will be less structured and more fluid
4. Payment is only received for hours worked
5. They may be entitled to a loading depending upon their contract and/or the particulars of their circumstances
6. Casual employees are not entitled to any form of benefits including; sick or vacation leave, holidays, superannuation, personal time, long term leave or disability leave
7. Benefits do include 2 days of unpaid carer’s leave 2 days unpaid compassionate leave per occasion
8. Unpaid leave for community service
9. Unpaid parental leave

However, it is possible for a casual employee to gain additional benefits. For this to happen the following criteria must be met:

• Maintain a period of regular employment for at least 12 months
• Possibly be entitled to long service leave and paid parental leave
• The ability to request flexible work hours

Despite all of these work requirements, Casuals do not receive paid leave or notice of termination.

Legally, the most difficult question to answer is which type of employee is a particular worker. While it is easy to ascertain a permanent full-time or part-time work due to their defined hours and benefits, it is more difficult to assess if a casual employee has crossed the line and, by nature of the circumstances, become a full or part-time permanent employee. This is the juncture where employers must be very careful.

If an employer takes the initiative and sets an employee’s schedule, thereby giving them a set number of hours on specific days, upon which the employee relies, the employer can be considered having changed the employee’s status from casual to permanent. This type of change will often hinge on whether the employer and employee have agreed to such a change of status. And, while it can be neatly and cleanly determined if the agreement is put into writing, it can be a bit more difficult if the agreement is either verbal or based upon the actions of either the employee or the employer. Such acquiescence by either party to a regular dependable schedule of hours can change the status of the employee. 

Hence, it is very important for employers to maintain the boundaries of each employee’s status by adhering to the defined ruled for each category of employment. 

In the event that you find yourself with questions or concerns about the status of an employee or any other employment law matters, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.