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To combat rising cost of living expenses, as well as higher interest rates impacting those still servicing home loan debt, a growing number of ‘retirees’ are returning to work.
According to KPMG analysis, in October 2002, workers over the age of 55 made up just 11.4 per cent (one in nine) of all Australian workers. In October 2022, the number of workers in this same age group had climbed to almost 19.6 per cent (one in five).
Although HR sector recruiters accessing the skill sets this ‘great unretirement’ cohort hold has meant new opportunities for employers, for the older Australians returning to work – often in sectors unrelated to their decades of professional experience – the trend has meant acclimatising to workplaces that are, increasingly, casualised.
No matter how old you are, understanding your rights in a casualised workplace matters. We asked employment lawyer specialist from Vault Legal, Ryan Solomons, to share some insights.
What is casual loading, and are casual employees entitled to it?
Casual loading is additional payment made on top of a casual employee’s standard hourly wage. Currently, casual loading is 25 per cent. However, this amount may differ in an enterprise agreement or award. All casual employees are entitled to casual loading. The purpose of casual loading is to compensate the casual employee as they do not receive the same entitlements as permanent employees, such as annual leave or personal leave.
Does an employer have to pay superannuation for a casual employee?
Under the Superannuation Guarantee (Administration) Act 1992 (Cth), employers are required to pay superannuation to casual employees who are over 18 years old and are not otherwise exempted from Superannuation Guarantee contributions.
Superannuation must also be paid for any casual employee who is under 18 years of age, works at least 30 hours per week and is not otherwise exempted.
What leave entitlements can casual employees access?
Under the National Employment Standards, casual employees are entitled to:
two days unpaid carer's leave per occasion
two days compassionate leave per occasion
family and domestic violence leave at an employer:
10 days paid leave for casual employees at a non-small business employer (i.e. an employer with 15 or more employees)
5 days unpaid leave for casual employees at a small business employer (i.e. an employer with less than 15 employees). However, as of 1 August 2023, employees of a small business employer can access paid family and domestic violence leave.
unpaid community service leave.
In certain circumstances, casual employees can also request flexible working arrangements and take unpaid parental leave.
Why do some casual employees receive public holiday penalty pay rates and others don't?
There are no penalty rates for working on a public holiday under the National Employment Standards for casual employees who are award or agreement free. Therefore, a casual employee will be paid at their ordinary rate of pay for any hours worked on the public holiday.
Most casual employees covered by a modern award are entitled to penalty rates for hours worked on a public holiday. Some modern awards, such as the Professional Employees Award 2020, do not require an employer to pay penalty rates to employees who work on a public holiday, but rather permit the employer to offer the employee either an extra day off work or extra annual leave.
To further complicate matters, where a public holiday falls on a day on which an employee would normally work, an employee may not be entitled to penalty rates for any hours worked on the public holiday.
Penalty rates vary depending on which modern award or enterprise agreement covers the employee.
Can a casual employee claim unfair dismissal?
In short, a casual employee may claim for unfair dismissal, provided they worked on a ‘regular and systemic’ basis, with a reasonable expectation of their employment continuing.
Can a casual employee be terminated without notice? And can they quit without notice?
Under the Fair Work Act 2009 (Cth), the employment of a casual employee may be terminated by either party without notice. The reason for this is that a casual employee’s employment effectively ends after each work shift. An employer can terminate a casual employee’s employment by simply not offering them any more shifts with the employer. However, some modern awards, enterprise agreements or individual employment contracts may prescribe a minimum notice period.
An applicable modern award may also impose a minimum engagement period for casual employment. If a casual employee is terminated following a scheduled shift, you must pay them for at least the minimum period for that day.
As employers are not required to provide a casual employee with notice of termination, casual employees are not ordinarily entitled to bring an unfair dismissal claim against their employer. However, in limited circumstances a casual employee who has been employed on a regular and systematic basis for a period of at least six months, and who has an expectation of ongoing employment, may be entitled to bring an unfair dismissal claim against their employer.
Where can a casual employee turn if they feel they are being treated unfairly in their workplace?
If a casual employee believes that they have been treated unfairly in the workplace or the employer has unpaid or withheld their pay or entitlements, the casual employee can seek assistance from:
a law firm who specialises in employment law
the Fair Work Ombudsman
Legal Aid or their local community legal centre.
The bottom line
In any workplace, employees do have rights. Just precisely what they are varies, depending on a range of factors outlined above, such as the specifics of the industry, related agreement, and length of service.
Go deeper: Explained: Age pensioners’ work bonus
