Commonwealth Consolidated Acts Commonwealth Consolidated ActsGeneral 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
(b) the considerations referred to in paragraph (2)(c) must all be considered but no single consideration is determinative and not all considerations necessarily need to be satisfied for an employee to be considered as other than a casual employee; and
(c) a pattern of work is regular for the purposes of subparagraph (2)(c)(iv) even if it is not absolutely uniform and includes some fluctuation or variation over time (including for reasonable absences such as for illness, injury or recreation).
Exceptions to general rule
(4) Despite subsection (1), an employee is not a casual employee of an employer if:
(a) the contract of employment includes a term that provides the contract will terminate at the end of an identifiable period (whether or not the contract also includes other terms that provide for circumstances in which it may be terminated before the end of that period); and
(b) the employee is a member of the academic staff or teaching staff of a higher education institution; and
(c) the employee is covered by one of the following modern awards:
(i) the Higher Education Industry - Academic Staff - Award 2020 as in force from time to time;
(ii) the Higher Education Industry - General Staff - Award 2020 as in force from time to time ; and
(d) the employee is not a State public sector employee of a State within the meaning of subsection 30A(1).
Note 1: A modern award covers an employee if the award is expressed to cover the employee, even if the modern award does not apply to the employee because an enterprise agreement applies to the employee in relation to that particular employment (see subsection 57(1) which deals with interaction between modern awards and enterprise agreements).
Note 2: This means an employee on a fixed term contract who is not covered by paragraphs (4)(b) and (c) may be a casual employee or may be other than a casual employee, depending on whether the employee satisfies the requirements of subsections (1) to (3).
Employees engaged as casual employees remain so until the occurrence of a specified event
(5) A person who commences employment as a casual employee within the meaning of subsections (1) to (4) remains a casual employee of the employer until:
(a) the employee's employment status is changed to full - time employment or part - time employment under Division 4A of Part 2 - 2; or
(b) the employee's employment status is changed by order of the FWC under section 66MA or 739; or
(c) the employee's employment status is changed to full - time employment or part - time employment under the terms of a fair work instrument that applies to the employee; or
(d) the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.