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hat are the factors that define a casual as opposed to a permanent employee?

It's not easy to define. The word "casual" is generally taken to mean something not permanent, that is, not intended to last. In the employment sense, a casual employee is engaged irregularly while a permanent employee has a regular employment relationship with the employer. So we could say an employee who is engaged irregularly is a casual employee; one who is engaged regularly is a permanent employee.

What does irregular mean

If we relied just on our meaning of the words irregular and regular, we would not have a problem defining who is or who is not a casual employee. To get it right we need to look at what happens in practice. So what does the word irregular mean in the employment sense? Clearly, it means something that is not expected to keep on happening.

If you were an irregular church goer it is likely that you would go to church every now and again - perhaps Christmas, Easter and special occasions. But if you attended church on the first Sunday of every second month, then some regularity may be present. So it is in employment. If a pattern of regular employment is evident then such employment may not be irregular and therefore not casual.

What is regular?

Of course, regular may be only for a set period of time. For instance, an employee might be engaged to work every Monday and Saturday for the next 12 months. Providing this is what the employee is told at engagement, then it's neither casual nor permanent. Such an employee is on a fixed term engagement.

In such cases when the employment is of a limited duration, the employee could not hold any genuine expectation of on-going employment beyond the fixed term. Although required to attend work on a regular basis, they cannot be regarded as permanent because the engagement is limited by time.

Likewise, that same employment could not be considered as casual although the employee only attends for two days a week. The reason it is not casual is because there is a regularity to their coming to work. There is also a pattern to the employment and an expectation by the employer that they will attend to work on each Monday and Saturday. Not the least important in this mix of factors is that the employee also has an expectation of work for the fixed term.

What then makes an employee not a casual? Not one factor can of itself by definitive as to who is a casual employee short of the obvious circumstance such as permanent employment or fixed term employment. Generally, if an employee has regular employment, and there is a pattern to that employment, and both the employer and the employee both have genuine expectation of on-going work, then it can safely be said that such employment is not casual.

Is a casual treated differently?

A casual employee has little security in employment. The employee is not clear on when work will be available, has no automatic rights to sick leave, public holidays, annual leave and in some circumstances, no superannuation entitlements.

To compensate for the lack of these entitlements there is an added hourly amount paid, known as the "casual rate". This varies between 15% to 25% and to this a further 1/12 needs to be added for the annual leave component. In some industrial instruments the casual rate incorporates the annual leave component. Where this occurs it must be written into the industrial instrument.

Apart from the above work related entitlements, a casual employee has rights to be treated fairly and to be paid for a minimum period even if that period was not fully worked. They should not be seen as an "add-on" to your business because many are diligent and conscientious employees.

Where there is a bona fide casual employment it is not necessary to provide the same notice for termination. However, where this occurs it is because under a casual employment contract the employment terminates at the end of the engagement.

To sum up, Industrial Relations Tribunals have used different tests to determine casual employment. They have been consistent on the point that if employment is regular, a pattern is apparent and it has continued over a reasonable period such as six months, then it probably is not a casual relationship.

Casual employment is there to assist a business where work cannot be guaranteed or is irregular. It also means that management has no on-going expectation that there will be regular engagement. If there is on-going work, even if irregular, other types of employment such as part-time may be considered.