New definition of casual employment

EXPLAINED: New definition of casual employment

Finally, we’ve been given a definition of a casual. The question of what makes a casual a casual has been a major cause of concern for employers, especially in recent years due to some court cases like Skene and Rossato.

So here we go – a person is now considered a casual employee if they accept a job offer from an employer knowing that there is no firm advance commitment to ongoing work with an agreed pattern of work.

The way it’ll be determined whether, at the time the offer was made the employer made no firm advance commitment to providing ongoing work  with an agreed pattern, is by checking 4 things:

HR Tactics HR Consultants Brisbane - New definition of casual employment
  • Whether the employer can elect to offer work and whether the employee can elect to accept or reject work.
  • Whether the employee will work as required according to the needs of the employer.
  • Whether the employment is described as casual employment.
  • Whether the employee will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

So it’s all about the nature of the “offer” that was “accepted” by the employee. The question of whether a person is a casual employee is now going to be assessed solely on the basis of the “offer” that was “accepted”, not on the basis of any subsequent conduct of either party

Ok I can hear you asking – so can I hire someone as a casual and still assign them a regular pattern of hours? the answer is yes. Because a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work. 

And once the casual has been offered and accepted a casual position knowing that there is no firm advance commitment to ongoing work with an agreed pattern of work they will continue to be a casual employee until they either: 

  • Stop being employed by the employer e.g. They resign or are terminated. 
  • They become a permanent employee which can happen by one of two ways – through: 
    • Casual conversion.
    • Are offered and accept the offer of full-time or part-time employment.

As an aside, they’ve also repealed the definition of ‘long term casual employee’ and introduced a new definition of ‘regular casual employee’. A regular casual employee is now defined in s.12 of the fair work act as a casual employee who has ‘been employed by the employer on a regular and systematic basis’. 

What has changed 

Unlike in the past, the casual employment relationship is now assessed at the point of offer and acceptance, not at all based on the nature of the employee’s ongoing work hours.  

What to do now 

Well, it’s all about your employment contracts. 

Because there has to be evidence that: 

1. an employer made an “offer” of employment stipulating that no firm advance commitment is being given to continuing and indefinite work according to an agreed pattern of work.

and  

2. that the person has “accepted” the offer knowing that there is no firm advance commitment. 

You now need to make sure your casual employment contracts or enterprise agreement clearly communicate this. 

So depending on what, if any, HR documentation you have in place that states the legal employment arrangement you have with your Casuals, you will need to take the following steps:

IS THIS YOU – don’t have employment contracts for your casuals – 1 thing to do

1. Get casual contracts drafted. 

OR IS THIS YOU – do already have employment contracts for your casuals – 2 things to do

1. Conduct a review of them and check for whether the wording in the casual employment contract. 

  • Meets the new definition.  
  • Communicates the 4 determining factors.
    • Whether the employer can elect to offer work and the worker can elect to accept or reject work. 
    • That the worker will work only as required according to the needs of the employer. 
    • The employment is described as casual employment. 
    • The worker will be entitled to a casual loading or a specific rate of pay under the terms stated in their contract, award or enterprise agreement. 
      • Which relevant entitlements the loading amount is compensating for.
      • The proportion of the loading amount attributable to each such entitlement.  

2. If the wording in your Casual Employment Contracts doesn’t comply then we strongly recommend that you draft an amendment or variation stating these points and have the employee sign it so that your casuals will now be legally defined and categorised as per the new definition and you have this legal document as evidence the position has been “offered” and that offer has been “accepted”. 

OR IS THIS YOU – Have an Enterprise Agreement – 2 things to do 

  1. Conduct a review of it and check for whether the wording: 
  • Meets the new definition.
  • Communicates the 4 determining factors 
    • Whether the employer can elect to offer work and the worker can elect to accept or reject work.
    • That the worker will work only as required according to the needs of the employer.
    • The employment is described as casual employment.
    • The worker will be entitled to a casual loading or a specific rate of pay under the terms stated in their contract, award or enterprise agreement.
      • Which relevant entitlements the loading amount is compensating for.
      • The proportion of the loading amount attributable to each such entitlement. 
  1. If the wording in your enterprise agreement doesn’t comply then we strongly recommend you make an application to vary your enterprise agreement using the new “Form F23C – application for the Commission to vary an enterprise agreement to resolve uncertainty or difficulty.”

HR Tactics – HR Consultants Brisbane – Outsourced HR

This information was provided with the intention of helping you find more clarity, confidence and peace of mind as you navigate your own journey as an employer. I would love to hear your thoughts on this, and if you think someone else would enjoy it please feel free to share it on.


If you want some fast and free tips on how to improve the HR processes in your business right now, start with our free little ebook.


If you want to hear more about the various HR solutions HR Tactics provides to the SME market and/or discuss solutions that would be most suited to your unique business, make sure you reach out. 


Or ask us a question at our HR Q&A page and receive an answer to your question for free. We’re here to help.


clients and Partners
About The Author
Jackie Strachan

Jackie Strachan

Jackie’s passion for creating better Human Resources outcomes stems from over 20 years’ experience in the field and a drive for finding innovative solutions.
Her HR career has seen her hold both operational and strategic HR management roles across a vast array of industry sectors including retail, financial services, child protection, professional services, dental, state emergency services, Department of Justice, agency recruitment and IT.
Combining her experience in each specialised area of Human Resources (such as learning & development, recruitment, WHS and employee relations etc), Jackie leads HR Tactics with an industry-respected foundation of knowledge.