Employees (updated Oct 2020)
At common law an employee is a person who works under an employment contract which may be either verbal or written. An employee is always an individual (as opposed to a company or partnership) and their employment is regulated by state (some employers in WA) and federal industrial relations laws including, where applicable, awards
An employee does not have the right to control how and when work is performed and cannot delegate work to others.
Workers deemed to be employees regardless of the common law definition
Some farmers believe hiring someone as a contractor means they don’t have to worry about the various laws which apply to employment – this isn’t always the case. Some laws such as workers compensation, superannuation as well as some taxation laws deem workers to be employees, regardless of the common law definition. See our topics on superannuation, independent contractors and our contractor or employee fact sheet.
1Employees may be engaged as permanent full-time employees, permanent part-time employees, casual employees or seasonal employees. It is important to understand the difference between these different categories as the various entitlements and responsibilities are different for each category.
Failure to categorise the employee correctly and therefore to adhere to legal and award requirements can lead to misunderstandings and possibly legal action for underpayment of entitlements and prosecution for breach of the award.
Full-time employees work fixed hours each week and are entitled to various forms of leave such as annual leave, personal leave, long-service leave and parental leave. They are also entitled to notice of termination and to make a claim for unfair dismissal.
Part-time employees are employed for fixed hours every week and depending on the number of hours worked and have the same entitlements as full-time employees calculated on a pro-rata basis. If public holidays fall on days usually worked, the employee is entitled to payment for that holiday. Part-time employees are also entitled to notice of termination and to make a claim for unfair dismissal.
The Pastoral Award 2020 specifies that the employer must roster the employee for a minimum of 3 hours, or 2 hours for full time secondary school students who are 18 years of age or under, on any shift.*
At common law, casual employees are employees who do not have regular or systematic hours of work or an expectation of continuing work. A typical casual employee is employed on a daily basis when the need arises. Casual employees are:
- entitled to be paid at the hourly rate plus 25% (Clause 11.5, Pastoral Award 2020) to compensate for lack of entitlements, e.g. annual leave, personal leave and the lack of continuity of work)
- on each occasion they attend work, they are entitled to a minimum payment of 3 hours’ work or 2 hours’ for full time secondary school students who are 18 years of age or under. (Clause 11.7, Pastoral Award 2020)
- not usually entitled to notice of termination.*
*the minimum engagement period full time secondary school students who are 18 years of age or under applies as of the first pay period on or after 1 January 2018.
Unfair termination laws recognise the concept of regular casual employees. The federal industrial laws provide for casual employees who are engaged on a regular and systematic basis and who have a reasonable expectation of continuing employment to make a claim for unfair dismissal, providing they have served the minimum employment period.
From the first full pay period on or after 1 October 2018 regular casual employees are able to request that their employment be converted from casual employment to full time or part time work.
What is a ‘regular casual employee’?
Regular casual employees are defined as employees who have in the preceding 12 months worked a pattern of hours on an ongoing basis which the employee could without significant adjustment continue to perform as a full time or part time employee.
What is the procedure?
Employers will have to give notice of the right to convert before completion of the first 12 months’ work for new casual employees and for current employees by 1 January 2019. This means giving the employee a copy of clause 10.5 of the Pastoral Award 2020.
Download: casual conversion 10.5 (Pastoral Award) fact sheet
The employee must make a written request to the employer and the employer must consult with the employee and consider the request.
The employer may refuse the request on reasonable grounds.
Any refusal must be in writing within 21 days of the request being made and state the reasons.
What are reasonable grounds?
Reasonable grounds include the following:
- It would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time or part- time employee – that is, the casual employee is not truly a regular casual employee;
- It is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;
- It is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months; or
- It is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.
If the employer agrees to the request, the employer and the employer must discuss and record in writing whether the employee is full time or part time.
If it is agreed that the employee will be part time then they must agree and record the regular pattern of work, the hours worked each day and the days of the week and actual starting and finishing times each day as per clause 11.8 (j) of the Pastoral Award 2020.
Employees hours can stay the same
You do not have to increase an employee’s hours if they seek to convert their employment to full time or part time. The employment converts at the same hours – like for like.
When does the conversion take effect?
The conversion takes effect as of the first pay period after the agreement is reached unless the employer and the employee agree otherwise.
Choosing to convert is the employee’s choice
You cannot require an employee to convert. This is their choice.
Employees who work similar hours each week
Employees who work similar hours each week, which are known in advance, should be hired as permanent employees, either full time or part time and paid the various entitlements.
Seasonal employees are engaged to perform work during a specified season with no expectation of continuing work once the season has passed. The season must be clearly identifiable, for example by weather or temperature, availability of the particular product or activity or marked by certain conditions such as festivities or other activities – e.g. calving and harvesting.
Under the federal industrial laws, seasonal employees are not entitled to notice of termination and if they are dismissed at the end of the season they cannot bring an action for unfair dismissal.
The laws about the employment of children vary from state to state. These laws deal with issues such as the age at which children are permitted to work, the types of work they can perform and the hours they can work. Visit our State Industrial Laws section.
The Fair Work Act including the National Employment Standards and the Pastoral Award 2020 also apply to the employment of children. The Pastoral Award 2020 provides for junior rates of pay which are a proportion of the adult rate.
The National Training Wage Schedule is contained at Schedule E in the Miscellaneous Award 2020, including the latest pay rates for trainees. For information on junior and trainee rates of pay, visit our pay rates section
Employers considering employing non-Australian citizens or permanent residents (e.g. working holiday makers) should be aware that some visas prevent or restrict the right of a person to work in Australia. Every worker from overseas must have a valid Australian visa with work rights.
Illegal workers are non-Australian citizens who are working in Australia without a visa, or who are in Australia lawfully but working in breach of their visa conditions. Work means any activity that normally attracts remuneration. In other words, even unpaid workers will be considered to be working if their work would normally attract remuneration.
Read more about hiring people from overseas (checking work entitlements, types of visas available – including the Labour Agreement Template).