15AMeaning of casual employee

15A Meaning of casual employee

General rule

(1) An employee is a casual employee of an employer only if:

(a) the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and

(b) the employee would be entitled to a casual loading or a specific rate of pay for casual employees under the terms of a fair work instrument if the employee were a casual employee, or the employee is entitled to such a loading or rate of pay under the contract of employment.

Note: An employee who commences employment as a casual employee remains a casual employee until the occurrence of a specified event (see subsection (5)).

Indicia that apply for purposes of general rule

(2) For the purposes of paragraph (1)(a), whether the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work is to be assessed:

(a) on the basis of the real substance, practical reality and true nature of the employment relationship; and

(b) on the basis that a firm advance commitment can be in the form of the contract of employment or, in addition to the terms of that contract, in the form of a mutual understanding or expectation between the employer and employee not rising to the level of a term of that contract (or to a variation of any such term); and

(c) having regard to, but not limited to, the following considerations (which may indicate the presence, rather than an absence, of such a commitment):

(i) whether there is an inability of the employer to elect to offer, or not offer, work or an inability of the employee to elect to accept or reject work (and whether this occurs in practice);

(ii) whether, having regard to the nature of the employer’s enterprise, it is reasonably likely that there will be future availability of continuing work in that enterprise of the kind usually performed by the employee;

(iii) whether there are full‑time employees or part‑time employees performing the same kind of work in the employer’s enterprise that is usually performed by the employee;

(iv) whether there is a regular pattern of work for the employee.

Note: A regular pattern of work does not of itself indicate a firm advance commitment to continuing and indefinite work. An employee who has a regular pattern of work may still be a casual employee if there is no firm advance commitment to continuing and indefinite work.

(3) To avoid doubt:

(a) for the purposes of paragraph (2)(b), a mutual understanding or expectation may be inferred from conduct of the employer and employee after entering into the contract of employment or from how the contract is performed; and