A Full Bench of the Fair Work Commission has given guidance as to who is a casual employee for the purposes of the Fair Work Act 2009 (Cth) (FW Act). 

The decision has taken some steps to remove the uncertainty that existed following a decision of the Federal Court of Australia (see our previous article here.)

What happened?

The employer operated a construction business and had an enterprise agreement.  The employment of a number of casual employees came to an end at the conclusion of a construction project.  The Construction, Forestry, Mining and Energy Union (CFMEU) claimed that the employees were entitled to redundancy payments.

Under the FW Act, a casual employee is not entitled to redundancy payments if their employment ends.  However, the CFMEU claimed that, based on the manner in which employees were engaged, the employees were not really casual employees.

On appeal, the Full Bench of the Fair Work Commission formed the view that the employees were not entitled to a redundancy payment.  The Full Bench determined that if an employee is engaged in a manner described as casual employment under a modern award or if an enterprise agreement applies to that employee, then the employee is a casual employee for the purposes of the National Employment Standards under the FW Act (including with respect to redundancy payments).

Key lessons for employers                     

This decision will give employers comfort in how they assess the nature of their employees’ employment.  The decision has also removed some uncertainty surrounding claims by casual employees for the benefits of permanent employment (such as paid annual and personal/carers’ leave and redundancy benefits) when the nature of the casual employee’s engagement has permanent characteristics. Employers should, however, still consider seeking advice when making such decisions.