Casual VS Part time Employment
Employing people on a casual basis seems like an easy uncomplicated option and one that many businesses use without fully understanding the implications. It is used because employers believe their workers only work when they are needed, there are no accruals to worry about (holiday pay, sick leave etc.,) and the employer has complete control over when and how they work. Right?
Unfortunately, as in all things, life is not so simple and industrial relations (IR) is complicated.
STATE OR FEDERAL?
You may not know but, dependent on your business structure, you may either be employing your workers under a WA State system or one bound under the Federal system (Fair Work)? No?
In many ways the two systems are ‘chalk and cheese’ so it is important to know which system you are under.
- To be in the State system you need to be a Sole Trader or a Partnership.
- To be in the Federal system you will have a Pty Ltd entity.
Your accountant will no doubt tell you that there are tax advantages in being a Pty Ltd BUT from an IR perspective there may be significant advantages in being a State employer.
I will outline some of the possible advantages:
- First and foremost, for some occupations there is no Award coverage in the WA State system so, from an employee perspective, the Minimum Conditions of Employment Act (Min Cons) covers you.
- That means – no overtime rates of pay, no penalties, no allowances, a 20% casualisation rate and one low rate of pay for all hours worked.
WHAT IS CASUAL EMPLOYMENT ANYWAY?
Whether you are under the WA State based or Federal the definition of casual employment is the same i.e. ‘irregular and unpredictable employment’. So logically, if the employment you are offering is reasonably regular and reasonably predictable it is more likely to be considered to be at least part time should you end up in a dispute or be audited.
If you have ‘casual’ employees who regularly work in excess of 12 hours per week then you have a potential issue, and while we are on that subject there is NO SUCH THING as a ‘permanent casual’ in either the State or Federal system.
In the Federal system ALL Modern Awards now contain provisions that confer the right for any casual employee to apply for re classification to part time or fulltime dependent on their past hours and future expected hours.
Whilst the State Awards don’t have this specific wording at this stage, there is no ‘get out of jail free card’ either. Many State employers have been successfully challenged by disgruntled employees who make a claim that they are in fact part time or fulltime employees with heavy penalties and repayments ensuing.
GETTING THROUGH THE MINEFIELD
You can avoid these issues by getting some good advice, by taking the time to improve your understanding in this critical area and most of all, having good employment documentation in place.
Why? Because in both the WA State and Federal System it is your responsibility to know and ignorance is no defence.
Having said this be careful.
In your rush to get advice and support be aware that there are organisations out there who will charge you a lot of money for ‘memberships’ which they get the value of and you don’t.
Clearwater Workplace Solutions can provide the sound advice you need, when you need it without having to sign up to continued memberships. Feel free to give me a call if you have any concerns.
Remember ‘you know what you know’ but ‘you don’t know what you don’t know’
and that is the area that can hit your hip pocket nerve
NOTE: Information provided in this article is related to WA-based employers only.