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Snapshot

  • The existence of ‘long-term casuals’ is increasingly recognised in case law and legislation.
  • Provided an employee is labelled a casual and paid a casual loading, the employee will likely be a casual employee, regardless of the regularity or certainty in the employee’s hours of work.
  • The Fair Work Act’s provisions pertaining to long-term casuals are giving rise to curious outcomes, with casuals receiving conflicting and sometimes arbitrarily determined employment benefits under the Act.

According to the Australian Bureau of Statistics, 2.3 million casual employees now make up 23.9 per cent of the Australian workforce. Recent cases from the Fair Work Commission (‘FWC’) and Federal Court demonstrate a growing tension between the way in which casuals have traditionally been viewed, how they are more recently defined and how they are currently regulated under the Fair Work Act 2009 (‘FW Act’). What emerges from the cases are legislative provisions that sit awkwardly with the development of long term casual employment.

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