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, permanent part-time, casual, or seasonal workers. It’s important to understand the differences, as each category has different entitlements and responsibilities.

Incorrectly classifying an employee and failing to meet the relevant legal or award requirements can lead to underpayment claims and possible legal action for breaching the award.

 

Permanent employees

 

Casual employees

 

The Fair Work Act now includes a clear definition of a casual employee. A person is a casual if they accept a job knowing there is no firm advance commitment to ongoing, indefinite work according to an agreed pattern, and they are entitled to accept or reject work offered.

However, if a worker regularly works set hours, especially if other permanent staff work similar hours, the role may not be considered casual, regardless of what the contract says. Employees working predictable weekly hours should instead be engaged as part-time and receive entitlements on a pro-rata basis.

Once engaged as a casual, an employee remains casual until they:

• convert to permanent employment,
• are offered and accept full-time or part-time work, or
• their employment ends.

Casual employee entitlements under the Pastoral Award 2020:

• Paid at the hourly rate plus 25% (Clause 11.5) to compensate for lack of leave and job security.
• Entitled to a minimum payment of 3 hours per shift, or 2 hours for full-time secondary students aged 18 or under (Clause 11.7).
• Not usually entitled to notice of termination. (The minimum engagement rule for secondary students applies from the first pay period on or after 1 January 2018.)

Casual employees working on a regular and systematic basis with a reasonable expectation of continuing work may be able to claim unfair dismissal, provided they have met the minimum employment period.

For more details and examples, see the Fair Work Ombudsman Casual Employment Changes page.

 

Casual Employment Information Statement

 

Small Businesses

 

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

• Small businesses (fewer than 15 employees): Must also give it to existing casuals once they reach 12 months of employment.
• Other businesses: Must provide it at 6 months, 12 months, and then every 12 months thereafter.

 

Converting from Casual 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.

Eligibility:

• Employed for at least 6 months (or 12 months in a small business), and
• Believe they no longer meet the legal definition of a casual employee.

Employer obligations:

• Must consult with the employee before making a decision.
• Can accept or refuse the request, but any refusal must be in writing with reasons.

Valid reasons for refusal include:

• The employee still meets the definition of a casual.
• Operational grounds, such as:
• Significant changes would be needed to how work is organised.
• It would have major impacts on business operations.
• Employment conditions would need substantial changes to comply with legal or award requirements.
• Compliance with a recruitment or selection process required by law would be breached.

Visit Becoming a permanent employee – Fair Work Ombudsman for more information.

 

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.

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

 

Laws on employing children vary by state and cover the minimum working age, the type of work allowed, and permitted hours. 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 hiring non-Australian citizens or permanent residents (e.g. working holiday makers) must ensure the worker has a valid visa with work rights. An “illegal worker” is someone without a visa or working in breach of visa conditions. Work includes any activity that would normally be paid, even if unpaid.

Read more about hiring people from overseas (checking work entitlements, types of visas available – including the Labour Agreement Template).