Employees (updated Aug 2024)

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.

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.

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Casual employees (updated August 2024)

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 and the employee must be entitled to accept or reject work which is offered.

However, employers should note that despite the words in the contract, working a regular pattern of hours may be taken to indicate that the employment is not casual.  If there are other permanent employees working similar hours this may also indicate that the employment is not casual.

Employees who work similar hours each week which are known in advance should be hired as part-time employees and paid the various entitlements calculated on a pro-rata basis.

Once employed as a casual, an employee will continue to be a casual employee until:

• they become a permanent employee through:
• changing their employment to permanent, or
• being offered and accepting full-time or part-time employment, or they stop being employed by the employer.

For further information about the laws about casual employment and useful case studies go to the Fair Work Ombudsman – Casual employment changes page.

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 Employment Information Statement

Small Businesses

Employers must give the Casual Employment Information Statement to all new casual employees and

• for small businesses with less than 15 employees – to existing casual employees when they have been engaged for 12 months
• for other businesses – after 6 months and 12 months and then after every 12 months.

Download: Casual Employment Information Statement

Changing from casual employment to permanent employment

In certain circumstances casual employees can seek to change their employment to permanent employment.

There are different rules for small businesses (less than 15 employees) and large businesses.

Employees are able to notify their employer in writing of their intention to change to permanent employment if the employee:

• has been employed for at least 6 months (or 12 months if working for a small business employer)
• believes they no longer meet the requirements of the new casual employee definition.

If an employer is notified that their employee wishes to change from casual employment to permanent employment they must consult with the employee before making any decision.  The employer may either accept or reject the change in certain circumstances in writing.

The employer can refuse the change if any of the following apply:

• the employee still meets the definition of a casual.
• there are fair and reasonable operational grounds for not accepting the notification, including:
• substantial changes would be required to the way in which work in the employer’s business is organised.
• there would be significant impacts on the operation of the employer’s business, or
• substantial changes to the employee’s employment conditions would be reasonably necessary to ensure the employer doesn’t break any rules (such as in an award) that would apply to the employee.
• accepting the change means the employer isn’t complying with a recruitment or selection process required by law.

If the employer refuses the change the response must include the reasons for the refusal.

Go to this link for further information and useful case studies about changing from casual to permanent employment

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 10.2 of the Pastoral Award 2020.

When does the change take effect?

The change takes effect as of the first pay period after the agreement is reached unless the employer and the employee agree otherwise.

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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).

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