Employees (updated July 2022)
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.
Employees 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.
Permanent employees
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.*
Casual employees (updated July 2022)
The FW Act has been amended to include a new definition of a casual employee.
A person is a casual employee if they accept a job offer from an employer knowing that there is no firm advance commitment to continuing and indefinite work according to an agreed pattern of work.
Once employed as a casual, an employee will continue to be a casual employee until:
- they become a permanent employee through:
- casual conversion, or
- being offered and accepting full-time or part-time employment, or they stop being employed by the employer.
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.
Casual conversion
As of 27 September 2021, the Pastoral Award 2020 incorporates the National Employment Standard about casual conversion.
Some provisions apply as of 27 March 2021.
What is casual conversion?
Casual conversion means the right of a casual employee to request that their casual employment be made permanent employment.
There are different rules for small businesses (less than 15 employees) and large businesses.
Casual Employment Information Statement
Small Businesses
Small business employers must give the Casual Employment Information Statement to all existing casual employees as soon as practicable after 27 March 2021 and new casual employees when they start work. Download: Casual Employment Information Statement
Businesses with 15 or more employees
Businesses with 15 or more employees must give existing casual employees a copy of the Fair Work Ombudsman’s Casual Employment Information Statement as soon as practicable after 27 September 2021. Download: Casual Employment Information Statement
Employee requests for casual conversion
Small businesses
Employees of businesses with less than 15 employees (small businesses) can make a request for casual conversion as of 27 March 2021 if they:
- have been employed by the employer for a period of 12 months, and
- during the six month period before the request they have worked a regular pattern of hours on an ongoing basis, and
- the hours could be worked without significant adjustment by a permanent full time or part time employee, and
- the employer has not refused a previous request in the last six months.
Download: Casual Conversion Fact Sheet for information about the process for requesting casual conversion.
Businesses with 15 or more employees
Employees of businesses with 15 or more employees can make a request for casual conversion as of 27 September 2021 if they:
- have been employed by the employer for a period of 12 months, and
- during the six month period before the request they have worked a regular pattern of hours on an ongoing basis, and
- the hours could be worked without significant adjustment by a permanent full time or part time employee, and
- the employer has not refused a previous request in the last six months;
- the employee has not refused an offer to convert in the preceding 6 months;
- the employer has not given the employee a notice advising the employee that the employer is not making an offer to convert;
- the request is made 21 days after the 12 month anniversary
Download: Casual Conversion Fact Sheet for information about the process for requesting casual conversion.
Employer offers for casual conversion (Businesses with 15 or more employees only)
Businesses with 15 or more employees are required to make offers of casual conversion after 27 September 2021 to casual employees if a casual employee has been:
- employed by the employer for a period of 12 months, and
- during at least the last six months they have worked a regular pattern of hours on an ongoing basis, and
- without significant adjustment these hours could be worked by a permanent full time or part time employee.
Download: Casual Conversion Fact Sheet for information about the process for offering casual conversion.
Records
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
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.
Employment of children
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
Hiring people from overseas
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).
