Your legal obligations: Part-time vs casual workers

In a competitive job market, more employers are thinking outside the square to attract and retain the workers they need. This could include hiring more part-time or casual workers – but what’s the difference between these two types of employment?

The rights of all workers are protected by law, but their benefits and conditions depend on how they’re employed.

We asked Andrew Jewell, Principal employment lawyer at Jewell Hancock Employment Lawyers to explain the key differences between part-time and casual work to help you understand your legal obligations. Here’s what you need to know.

The key differences between part-time and casual employment come down to:

• hours worked

• leave entitlements

• payment terms

• the way employment can be terminated.

Part-time employees work a set number of hours per week (less than 38 hours). The hours which casuals work may vary, and employers aren’t required to guarantee these hours. This gives employers more flexibility during slower times of the year.

“Casual employment has flexible hours which change pursuant to a roster, while part-time employment involves set shifts,” says Jewell.

Casual workers aren’t obliged to work the hours they’re offered, but they also can’t demand extra hours from their employers. Most modern employment include the minimum or maximum number of hours for a casual shift. For instance, if you run a restaurant, your casual workers can work a maximum of 12 hours per day or per shift, according the Restaurant Industry Award 2020.

“Part-time employees work set hours and there must be agreement to amend these, while casual employees work to rosters which can change in accordance with the roster period,” says Jewell.

Part-time employees earn a consistent wage based on their ordinary hours of work, and they usually don’t receive additional pay for reasonable overtime.

Casual employees are paid on an hourly basis and the rate may be higher than part-time employees due to a ‘casual loading’, which is an additional payment on top of the higher hourly rate.

“Casual employees generally receive a casual loading of 25 per cent, while part-time employees do not,” says Jewell.

Jewell explains that employers are required to pay part-time and casual employees superannuation on their earnings. Businesses are required to pay superannuation contributions of 10.5% for all employees aged over 18, and to employees under 18 who are working more than 30 hours a week.

Part-time employees are entitled to a suite of benefits under the Fair Work Act, such as paid annual leave and paid personal/carers leave.

While casual workers don’t receive paid leave, they get entitlements under the National Employment Standards. These include two days of unpaid carer's leave and two days of unpaid compassionate leave per occasion, as well as five days’ unpaid family and domestic violence leave (in a 12-month period) and unpaid community service leave.

“Casual employees also do not accrue annual or personal leave, but part-time employees do,” says Jewell.

Jewell explains that dismissal procedures are different for part-time and casual workers.

“Casual employment can generally be ended with one day’s notice, while part-time employees are owed notice under the National Employment Standards,” he says.

The notice period for part-time work starts the day after an employer tells the employee that they are ending the employment. The minimum notice period generally depends on the length of continuous service. However, employees aged over 45 years who have worked for the employer for at least two years receive an extra week of notice.

You may also be required to pay part-time employees a redundancy payout, and they generally have greater protection from unfair dismissal.

The Fair Work Act regards a dismissal to be unfair if it is ‘harsh, unjust or unreasonable’. For instance, if you a part-time employee without reason, it may be considered unfair under the Fair Work Act.

Jewell explains that part-time employees are protected from unfair dismissal after they have been employed for a period of 6 months.

“After this period, the reason for their dismissal cannot be harsh, unjust or unreasonable, and employees must be afforded procedural fairness when being dismissed.”

In general, casual employees are not protected from unfair dismissal. However, Jewell notes if a casual employee has been employed for at least two months on a regular and systematic basis and has a reasonable expectation of continuing employment on that basis, they’ll be protected.

“Whether this is the case will depend on the individual circumstances of the casual employee’s employment.

“When dismissing either a part-time or casual employee, employers should ensure there are no discriminatory reasons involved, that they have a valid reason and have sought and genuinely considered the employee’s response to the reason.”

All workers in Australia are legally entitled to safe and fair employment. These rights are covered in work health and safety (WHS), workers compensation and equal opportunity legislations.

For instance, you’re required to provide adequate training and information to ensure that your workers are safe from injury and risks to their health. The model WHS Act defines ‘health’ as both physical and psychological health. This means you must manage the health and safety risks of workplace bullying, as well as risks associated with your physical work environment.

WorkCover schemes, which are also known as WorkSafe or ReturnToWork in some states, ensure that workers can make a claim for compensation if they are injured at work.

As an employer, you also have a legal responsibility to ensure that everyone who works for you is treated fairly and with respect.

“Employers can seek advice from the Fair Work Commission or otherwise from employment lawyers,” says Jewell.

Hiring part-time or casual workers can add valuable skills to your team and bring greater flexibility to your staffing needs. Understanding the difference between these two employment types can help you meet your obligations and source the workers you need.

Information provided in this article is general only and it does not constitute legal advice and should not be relied upon as such. SEEK provides no warranty as to its accuracy, reliability or completeness. Before taking any course of action related to this article you should make your own inquiries and seek independent advice (including the appropriate legal advice) on whether it is suitable for your circumstances.