Casual probation

[Alex H.]

Afternoon all,

Can someone be employed as a casual, without loading, but accruing holidays against the future when they will be made permanent, i.e. after their probationary period of three months?

If so, what arrangements should be made for paying out holidays when they are terminated?

Alex.

[Qld IR Consultant]

Alex, everything you want is a breach of the NES and Award. The period is 6 months and casual employees must be paid leave loading.

Do you have a workplace agreement in place? You would be better off employing them as a Permanent-Part time employee or on a fixed term contract with fixed hours/roster. I have a feeling you are wanting an employee for seasonal reasons, or perhaps project work?

[Alex H.]

No, it was in preparation for a full time continuing position.

The way it worked was - sign a casual contract, which was based on the wrong industrial instrument, then when the decision was made for permanency the hours accrued would be added.

There was no casual loading in the contract and full time and casual staff both get the same hourly rate of $38.

I've been informed that casual loadings don't always apply, especially when the pay rate is above award. Is that true?

[Qld IR Consultant]

Why are you getting them to sign a contract to work casual under an incorrect industrial instrument? Paying above award does not negate employers from their obligations under an award or agreement. If your paying your casuals the same rate as your permanents then first off you need to display the breakdown of it on payslips.

Casual award rate + loading + above award payment etc. It must be clearly displayed to employees exactly what their employment arrangements are or the ombudsmen will have a field day.

My advice is get a workplace agreement in place, removing you from the modern award system and clearly defining wages and conditions before you do anything else. You can put a clause in the agreement for it to be retrospective.

But from what you have posted I caution you against doing anything until you get someone in to go through your arrangments.

[Alex H.]

I wouldn't treat anyone like this, just trying to figure out what can be done at this point.

When you say ombudsman, do you mean Fair Work Australia? They didn't seem to be interested at all.

Alex.

[HeyPete]

You will need to make an agreement through FairWork Australia, but if you have breached any of the legislation, the FairWork Ombudsman will be on your case.

What state are you in?

[Alex H.]

I'm in Queensland.

Sorry all, I probably should have made this clear from the start, I'm on the receiving end of the dodgy contract.

[HeyPete]

Alex, I will assume you work for a Constitutional Corporation here..

Can someone be employed as a casual, without loading

This is unlikely, as your total salary will be made up of a base, casual loading, additional allowances if any, and super.

If you are covered by a Modern Award, the award will most likely stipulate the casual loading required. If you are not covered by a Modern Award, then the National Minimum Wage Order kicks in, providing a Casual Loading of 22%.


"accruing holidays against the future when they will be made permanent, i.e. after their probationary period of three months?"

Once again I don't understand how this would work, as the National Employment Standards prescribes Annual Leave to be accrued progressively, and is payable to the employee on their termination, regardless of time with employer ie. less than 3 months.

If so, what arrangements should be made for paying out holidays when they are terminated?
Alex you are either a casual employee or a permanent. If you are casual you should receive a casual loading (clearly indicated in your salary breakdown) and no leave entitlements.
If you are a permanent employee, you will accrue leave from day one, and any accrued leave should be cashed out when you are terminated from your place of employ.


I would recommend you get onto fairwork.gov.au and either give one of the operators a call, or get on their Live Chat, to clarify the above which I have just explained.

Hopefully our responses match