Casual Employees

Many people in WA are employed as casuals, and many of them work the same shifts week after week for years. The law on who is really a casual, and on how a casual can become permanent, changed on 26 August 2024. This page explains where things stand now under the Fair Work Act 2009 (Cth), and for casuals in the WA state system.

Who Is A Casual?

Since 26 August 2024, you are a casual employee only if (s 15A):

1. your employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and
2. you are entitled to a casual loading or a specific casual rate of pay under your award, agreement or contract.

Whether there is a firm advance commitment is assessed on the real substance, practical reality and true nature of the relationship, not just on what the contract says. The commitment can come from the contract, or from a mutual understanding or expectation shown by how the job actually works. The factors that must be considered include:

• whether your employer can really choose whether to offer you work, and you can really choose whether to accept it, and whether that happens in practice;
• whether it is reasonably likely there will be continuing work of the kind you do;
• whether full-time or part-time employees do the same kind of work; and
• whether you have a regular pattern of work. A regular pattern does not on its own mean you are not a casual, and a pattern can be regular even with some variation and ordinary absences.

No single factor decides it.

What Are Casuals Entitled To?

Casuals are paid a casual loading, usually 25% on top of the award's base rate (or the award's casual rate). Award-free casuals get 25% on top of the national minimum wage: $33.05 an hour from 1 July 2026. The loading is paid instead of some entitlements that permanent employees get, such as paid annual leave, paid personal/carer's leave, notice of termination and redundancy pay.

Under the National Employment Standards, casuals do get (according to the Fair Work Ombudsman):

• the employee choice pathway to permanent employment (below);
• 10 days' paid family and domestic violence leave each year;
• unpaid carer's leave and unpaid compassionate leave;
• unpaid community service leave;
• the Fair Work Information Statement and the Casual Employment Information Statement, which your employer must give you when you start and again at set points during your employment (s 125B).

Regular casuals (employed on a regular and systematic basis with a reasonable expectation of continuing) can also request flexible working arrangements and take unpaid parental leave after 12 months, and their casual service can count towards the minimum employment period for unfair dismissal (s 384). Casuals are also protected by the general protections and anti-discrimination laws like every other employee, and your award will usually give you penalty rates as well as the loading.

Long-serving casuals may also be entitled to long service leave under the Long Service Leave Act 1958 (WA), depending on how continuous their employment has been. Ask us if this applies to you. See types of leave.

The Employee Choice Pathway To Permanent Work

Since 26 August 2024, a casual can ask to become permanent under the employee choice pathway (ss 66AAA to 66MA). You can give your employer a written notification if (s 66AAB):

• you have been employed for at least 6 months, or 12 months if your employer is a small business employer (fewer than 15 employees);
• you believe you no longer meet the casual definition above (for example because you now work to a regular pattern and there is a firm advance commitment to ongoing work); and
• in the last 6 months your employer has not refused a previous notification, and you have not had a dispute about it resolved, and you do not have one on foot.

Your employer must consult you and give you a written response within 21 days (s 66AAC). If it accepts, the response must say whether you will be full-time or part-time, your hours, and the day the change starts (usually the first day of your next full pay period). It can refuse only on these grounds, and must give reasons:

• you still meet the definition of a casual employee;
• there are fair and reasonable operational grounds, such as substantial changes to how work is organised, significant impacts on the business, or substantial changes to your conditions needed to comply with an award; or
• accepting would mean not complying with a recruitment process required by law.

Your employer must not cut your hours, change your pattern of work or end your employment to avoid these obligations (s 66L). Giving a notification is a workplace right, protected by the general protections.

If Your Employer Says No

You and your employer must first try to resolve the dispute by discussion. If that fails, either of you can refer it to the Fair Work Commission, which will try conciliation and can then arbitrate (ss 66M, 66MA). The Commission can order that you be treated as full-time or part-time from a set date, or that you continue as a casual.

"I Was Never Really A Casual"

If you were labelled a casual but your job did not meet the definition, you may have been a permanent employee all along, with entitlements to paid leave, notice and redundancy pay that were never paid. These claims can be complicated, particularly for periods before 26 August 2024 when a different test applied, and you should get advice.

Casuals In The WA State System

If you are in the WA state system (for example you work for a sole trader, a partnership, a WA council or the WA public sector), different rules apply:

• whether you are a casual is decided under s 7B of the Industrial Relations Act 1979 (WA), also on the real substance of the relationship, from 31 January 2025;
• the minimum casual loading is 25% under s 11 of the Minimum Conditions of Employment Act 1993 (WA) (it was 20% before 31 January 2025). From the first pay period on or after 1 July 2026 the adult casual minimum is $32.84 an hour; and
• there is no statutory casual conversion right in the WA state system, although your WA award may contain one.

See minimum conditions in the WA state system.

How We Can Help

We can tell you whether you are really a casual, help you prepare an employee choice notification, respond to a refusal, and pursue unpaid entitlements if you were wrongly treated as a casual. Contact us for a free confidential discussion.