Most Melbourne warehouses and plants run a mix of permanent staff, labour hire workers and direct casuals. The casuals on the same shifts week after week deserve a closer look, because the casual employee definition has two parts, and one of them asks about a firm advance commitment to ongoing work.
A casual who has been employed for 6 months (12 in a small business) and believes they no longer meet that definition can give you written notice asking to move to permanent employment. You then have 21 days to reply. This guide covers the weeks before that notice. When is a casual not casual? It depends on the whole arrangement, so the review below is there to raise questions early, not to settle them.
What the casual employee definition turns on
The Fair Work Ombudsman describes a casual employee as someone whose employment relationship, when they start, has no firm advance commitment to ongoing work, taking into account a number of factors. The definition adds a second part: the person is entitled to a casual loading or a specific casual pay rate under an award, a registered agreement or their employment contract. A loading alone does not settle the first part.
The Ombudsman's summary refers to a number of factors without listing them, so no roster pattern can give you a certain answer about one employee. Take the answer for a particular person to your adviser. For the award side of rostering, our guide to rostering casuals and part-timers covers that ground.
Two points sit around the definition. The pathway starts with the casual's written notice, so you do not trigger it yourself. And a casual cannot give notice during an ongoing dispute about changing to permanent employment, or if in the previous 6 months the employer refused a previous notice or a dispute about employee choice was resolved. Employee choice eligibility also depends on your business, so check the Fair Work Ombudsman casual conversion guidance for when the pathway applies to you.
If some of your casuals are supplied through a labour hire provider, the notice goes to their employer, and that is usually the provider. Ask your provider how it handles a notice and what roster information it needs from you.
Roster patterns to look at for each regular casual
The Ombudsman's example, set out in the next section, describes four details about one casual. They make a sensible starting list, as long as you remember they come from a single example and not from a rule. For each regular casual, look at:
- Hours each week. Is the person rostered the same hours every week, or does the pattern genuinely move with demand? Read the last six months of rosters, not the last fortnight.
- Work offered. Note whether you have always been able to offer this person work.
- Likelihood of ongoing work. Do you reasonably expect this work to continue? Check your answer against your order book.
- Others in the role. Do part-time employees work in the same role?
- Pay basis. Is the casual loading or casual rate being paid as the award, agreement or contract says?
No single answer settles it, and none is a legal test, because the definition takes a number of factors into account. Together they show you whether a notice from this person would surprise you.
A worked example from the Fair Work Ombudsman
The Ombudsman's guidance includes a short example. Mariana is a casual cleaner at a large contract cleaning company and has worked there for 9 months. Her employer rosters her every week from 8 am to 1 pm, Monday to Friday, has always been able to offer her work, believes it is reasonably likely she will have ongoing work in future, and has part-time employees working in the same role.
Mariana gives her manager, Victor, a written notice because she believes she no longer meets the definition of casual employment. They discuss her status, her hours and when the change would take effect. Victor accepts in writing: she starts as a part-time employee in two weeks, working 8 am to 1 pm, Monday to Friday.
Two things are worth taking from this. The employer in the example accepted the notice, and the Ombudsman gives it as an illustration, not as a ruling on every employer with the same facts. And the regular roster is one fact about Mariana's job, not a rule.
A six-monthly review of your regular casuals
The pathway opens to a casual after 6 months in the job (12 in a small business), so a six-monthly review matches the timing. This is a suggested routine, not a legal requirement.
- List the casuals. Include everyone who has been with you for at least 6 months, or 12 if you are a small business.
- Pull the rosters. Look at hours, days and shifts over the period, and mark anyone whose pattern has barely moved.
- Ask the five questions. Use the list above for each person and write one line for each answer.
- Flag the unclear cases. Take them to your adviser or the Ombudsman before a notice arrives, and keep a dated note of what you looked at.
One caution matters more than the rest. The Ombudsman says an employer cannot take certain actions to avoid its obligations or an employee's rights under the pathway, including reducing or varying the employee's hours, changing their pattern of work or ending their employment. Trimming hours for the people who look most regular is the wrong use of this review. The 21-day response, the reasons for refusing and the full list of protections belong to a separate guide on responding to a casual's notice.
Planning options before a notice arrives
If the review shows a casual doing what looks like an ongoing job, you can act before anyone gives notice. One option is to offer a permanent role on your own terms. Chandler Personnel is an independent, Melbourne-based blue collar specialist, and its Chandler Recruitment division handles permanent recruitment if a role that has become ongoing needs another permanent hire.
A second option is to keep casual arrangements only where the work really does vary. Our guide to the mix of permanent and casual staff looks at how the two sit together. If the same roles keep reopening, our guide to planning for staff turnover is a good place to start.
A third option is to cover genuine peaks with labour hire. Chandler Services supplies labour hire, and you can request staff from Chandler Personnel when you need cover. Whichever provider you use, check it on the Labour Hire Licence Register before you sign.
If the regular casual is a tradesperson, our guide to turning contractors into permanent hires covers how to build a permanent offer for trades.
Related Resources
- Fair Work Ombudsman casual conversion guidance
- Rostering casuals and part-timers
- Mix of permanent and casual staff
- Planning for staff turnover
- Turning contractors into permanent hires
- Permanent recruitment
Common Questions About the Casual Employee Definition
1. What makes someone a casual employee?
The Fair Work Ombudsman describes two parts. When the person starts, the employment relationship has no firm advance commitment to ongoing work, taking into account a number of factors, and they are entitled to a casual loading or a specific casual pay rate under an award, agreement or contract.
2. Does a regular roster make a casual permanent?
The Ombudsman gives no roster test. Its definition asks whether there is a firm advance commitment to ongoing work, taking into account a number of factors. Its worked example describes a casual rostered the same hours every week, and the employer accepted that casual's written notice after discussing it. Under the pathway the casual gives notice first.
3. Do I have to offer permanent work to long-serving casuals?
Under the employee choice pathway the casual starts the process by giving written notice, so it is not an automatic offer. Check the Fair Work Ombudsman page for any other obligations that apply to your business. You can also raise permanent work with a casual before they ask, and your adviser can help you settle the terms.
4. Does a casual loading make someone a casual employee?
No, not by itself. The definition has two parts, and the loading answers only the second: an entitlement to a casual loading or specific casual pay rate. Someone paid a loading can still give notice if they are eligible and believe they no longer meet the definition, because the first part, no firm advance commitment to ongoing work, is a separate question.
5. Who decides if a casual still meets the definition?
You respond to a notice first, after consulting the employee, so the first decision is yours. If a dispute cannot be settled at the workplace, the Fair Work Commission can hear it, and it generally tries mediation or conciliation first. The reasons for refusing are covered in a separate guide on responding to a casual's notice.
Review Regular Casuals Before They Ask
A regular roster does not settle whether someone is a casual, and a notice is not a problem in itself. The risk is being surprised by one. Pull the rosters for everyone who has passed the six-month mark, ask the same questions of each person, and take the unclear cases to your adviser this month. Do it to plan your workforce, never to trim anyone's hours.
