Christa Lenard, K&L Gates
Christa Lenard, K&L Gates

Casual employment remains in a "state of flux", and until some sort of intervention gives employers clarity, the best thing HR can do is conduct a workforce audit to understand where their risks lie, a lawyer says.

There's a "fundamental divergence" between last year's full Federal Court WorkPac v Skene decision and the common law position, K&L Gates partner Christa Lenard tells HR Daily ahead of her upcoming webinar on casuals, contingent and labour hire developments.

The Fair Work Act specifies that employees remain casuals while engaged regularly and systematically over a period of time, but affords certain entitlements that would otherwise not be granted, such as unfair dismissal rights.

The Skene decision, on the other hand, is completely "at odds with the statutory concept of a regular and systematic casual", Lenard says.

This is because the Skene decision postulates that an employee engaged in regular and systematic work is permanent, not casual.

The full Federal Court found "it doesn't matter if... you're engaged on a contract that says you're casual and you're paid your 25% loading. If you become regular, then you are a permanent employee".

Regulations introduced to prevent "double dipping" haven't fixed the discrepancy, Lenard says.

Added to this are employers' relatively new obligations under the casual conversion clause inserted into modern awards.

Organisations must provide employees with a copy of the relevant award clause, and notify them of their right to convert, within 12 months, Lenard says.

But there remains confusion about how employers should do this in a way that meets their obligations; employers have questioned whether posting a notice in the workplace is enough, or if they should attach it to payslips, for example.

Workforce audits

Audits are critical if employers are to understand their exposure to conversion requests or the possibility of casuals later claiming they should have been engaged as permanent employees.

"The big takeout is you really need to know how you're employing people, and do an audit of your workforce," Lenard says.

Employers should check the regularity and pattern of work in order to gauge the nature of the relationship, Lenard recommends, adding that this won't necessarily be a simple task if business and line managers are engaging workers under different models.

What the law considers a true casual might be very different to what the organisation sees as a casual employee, she warns, and one way or another employers should expect changes in this space.

"If the common law position isn't changed, then there's going to have to be legislative change."

Register for our upcoming webinar to learn more about recent developments in the casual space and practical considerations and steps for HR – including an audit checklist.