New definition of casual employee

The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) changed the definition of casual employee, applying from the 26th August 2024. The new definition of casual employee applies to employees covered by the Fair Work Act 2009 (Cth) (the Act). 

Under the new section 15A of the Act, the meaning of a casual employee is characterised by two aspects: one, that there is no firm advance commitment for the employer to provide continuing and indefinite work, and two, that the employee would be entitled to casual loading under the Act if they were a casual employee, or they are entitled to this loading by their contact of employment. 

The section goes on to list what should be considered when determining an absence of firm advance commitment to continuing and indefinite work, which is summarised as follows: 

• The substance, practical reality and true nature of the employment;
• The form of the contract of employment; 
• The mutual understanding or expectation between employer and employee;
• Whether the employer is unable to offer or not offer work;
• Whether the employee is unable to accept or reject work (and whether in fact this happens in practice);
• Whether when considering the nature of the employer’s enterprise, it is reasonable likely that there will be future work available of the type the employee performs;
• Whether there are full time or part time employees performing the same type of work that the casual employee performs; or
• Whether there is a regular pattern of work for the employee.

All of the above list should be considered, no single item can determine the nature of the employment relationship on its own. 

The section goes on to provide some exceptions where the employee is not a casual employee if the listed characteristics below apply:

• The contract of employment has a term ending the employment on a set date; and 
• The employee is a member of academic or teaching staff; and 
• The employee is covered by either the Higher Education Industry – Academic Staff Award 2020 or the Higher Education Industry – General Staff Award 2020, as in force from time to time; and 
• The employee is not a State public sector employee. 

The section further provides for the ways by which an employee may cease to be a casual employee. 

These changes are intended to provide significant clarity for employers and employees alike. As with the other provisions brought in with this amendment, the above changes to the definition of casual employee will be reviewed in not less than 2 years after the date the amendment received royal assent. 

Disclaimer: This summary is a guide only and is not legal advice. For more information, call ECA Legal on (08) 6241 6129 or email ecalegalwa@ecawa.org.au