In particular, this series will look at:
1. The dos and don'ts of holiday shut-down periods;
2. Key things to consider when utilising casual employees during the holiday rush; and
3. Why it's important to keep the Christmas cheer in check at end of year celebrations.
Part 2: Key things to consider when hiring casual employees to handle the Christmas rush
For many employers, the most wonderful time of the year is often also the busiest time of the year and it is necessary to utilise casual employees to help meet operational demands. This article explores some of the most commonly over-looked aspects of casual employment and tips to avoid inadvertently finding yourself in hot water.
Australians are expected to spend over $50 billion dollars across the retail sector alone in the lead up to Christmas. Inevitably, many employers (particularly in the retail and hospitality sectors) will require additional elves to assist during this period.
A true casual employee's working hours will vary depending on operational requirements and there is no guarantee of ongoing employment. It is important that your business lives and breathes these fundamental aspects of casual employment, because getting it wrong could give rise to significant liability and costs.
Casual employment – the tips and tricks to ensure your business remains compliant
1. Compliance with industrial instruments and contractual requirements
You should review the terms of the applicable industrial instrument (or where not applicable, the National Employment Standards) to ensure that your business' casual employment arrangements are compliant.
Casual loading is designed to compensate a casual employee for the 'casualness' of their employment. Including annual and personal leave entitlements, the uncertainty / irregularity of their employment, redundancy pay and notice of termination provisions. It is important that casual contracts of employment not only state the casual nature of the employment, but also specifically set out what is to be absorbed by the casual loading. In Fair Work Ombudsman v Something Aussie Pty Ltd & Anor  FCCA 186, the employer and its sole director were fined more than $120,000 after, amongst other things, failing to pay the applicable casual loading over a period of five years.
Employers should ensure their Christmas casual employment contracts are compliant – and check it twice!
2. Ongoing employment
This is a situation familiar to many employers - you hire casual employees to cover a particularly busy period and amongst the casual cohort there is a real gun, someone who has exceeded expectations, fits in perfectly with the workforce and just gets it… so you keep them on. This is where employers can inadvertently find themselves in hot water.
When a casual employee’s engagement over a 12 month period becomes regular and systematic, and they have a reasonable expectation of ongoing work, they will likely qualify for a number of entitlements that would otherwise not be available to them.
This includes, but may not be limited to:
• Leave entitlements;
• Long service leave;
• Redundancy pay; and
• Protection from unfair dismissal (where all other criterion are also met).
The question then becomes “What is regular and systematic?”. The case law in this area requires that consideration be given to the employee’s engagement as a whole and it is not limited to only any regularity with respect to the days or hours of work.
In Ponce v DJT Staff Management Services Pty Ltd t/as Daly's Traffic  FWA 2078, Fair Work Australia (as it was then) found that in situations where there is not a clear pattern or roster of hours / days worked, it may be sufficient if the casual employee:
• Is regularly offered work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and
• The work is offered and accepted regularly where it could no longer be regarded as simply occasional or irregular.
If after the Christmas / New Year period you wish to retain a particularly high performing casual employee, we recommend employing them on a suitable part-time or full-time arrangement.
3. Existing obligations
Casual employees remain entitled to protection with respect to discrimination, sexual harassment, bullying and the overall obligation to be provided with, so far as reasonable, a workplace safe from risk to health and safety. To the extent that your business has policies and procedures in place to address such issues, you should ensure that they adequately cover casual employees.
If you are unsure what your obligations are with respect to the Christmas and New Year period, please do not hesitate to contact a member of our Australian Employment team.
We would like to acknowledge the contribution of Nicole Davis to this article.