Employees working on a short-term basis have entitlements that some employers do not realise. An employer may believe that an employee who works less than (say) three months does not have an entitlement to many conditions of employment, so here are a few that you have to think about.
An employee working short term could be full- time, part-time or casual, depending upon the agreement between the parties.
An employer must always check the relevant award or workplace agreement to determine an employee’s entitlements. The minimum entitlements under the National Employment Standards (NES) apply to all employees covered by the Fair Work Act 2009. For example, a casual employee is entitled to certain provisions under the NES in relation to unpaid leave, as well as conditions prescribed by the applicable industrial instrument.
Under the NES, a full-time or part-time employee accrues annual leave progressively based on their continuous service with the employer. There is no minimum period of employment that must be served before an employee is entitled to take annual leave, or be entitled to payment of accrued annual leave upon termination of employment.
For casuals, some employees may have an entitlement to one-twelfth that arises from the previous NAPSA or an old federal award. This may continue because of the transitional rates under the modern awards, so please look at the rate of pay carefully.
Personal/carer’s leave (including compassionate leave)
As with annual leave, a full-time or part-time employee may take any accrued paid personal/carer’s leave regardless of their length of service.
All employees, including a casual employee, are entitled to up to two days of unpaid carer’s leave for each permissible occasion because of a family or household member’s illness or injury or an unexpected emergency affecting the member.
A full-time or part-time employee is also entitled to up to two days of paid compassionate leave upon the death of a family or household member, or a member is suffering a life-threatening illness or injury.
A casual employee is entitled to two days of unpaid compassionate leave in the same circumstances.
As with personal/carer’s leave, there is no qualifying period of employment that must be served before an employee is entitled to paid or unpaid compassionate leave.
For the purposes of the Superannuation Guarantee (SG) employer contribution, an employee is anyone who receives salary or wages in return for their labour or services.
The following categories of employee are eligible for employer contributions under the SG, regardless of their period of service with the employer:
• an employee aged between 18 years and 70 years;
• are paid $450 (before tax) or more in a particular month;
• work full-time, part-time or on a casual basis; and
• temporary residents on selected visas may also be eligible.
An employer may also have to make SG contributions for contractors who are paid under a contract that is wholly or principally for labour, even if the worker quotes an ABN.
The following employees are not eligible for SG employer contributions:
• those paid less than $450 (before tax) in a calendar month;
• an employee who is under 18 years of age and is working 30 hours or less per week;
• an employee who is a foreign executive who holds a certain visa or entry permit under the migration regulation;
• those paid to do work of a domestic or private nature for not more than 30 hours per week (eg. nanny or housekeeper);
• one who is a member of the army, navy or air force reserve; and
• an employee temporarily working in Australia for an overseas employer and who is covered by a bilateral social security agreement. A certificate of coverage must be presented to receive the exemption.
Notice of termination
The minimum period of notice of termination of employment under the Fair Work Act applies when an employer terminates a full-time or part-time employee’s employment.
However, this provision does not apply to an employee employed as a casual or an employee employed for a specified period of time or a specified task.
The amount of notice required to be given when an employee resigns, or the notice period required to be given to (or by) a casual employee is determined by the applicable industrial instrument (eg. modern award or enterprise agreement), otherwise the individual contract of employment.
To claim unfair dismissal, an employee must have completed the relevant qualifying period of employment – six months where the employer employs 15 employees or more, or 12 months where the employer employs fewer than 15 employees (total head count).
A general protections (unlawful) dismissal is where the dismissal was on the grounds of, for example, discrimination or because of the employee’s temporary absence from work due to illness or injury. This can apply from day one of employment.
The public holidays listed under the Fair Work Act, as well as those prescribed in industrial instruments, do not require an employee to serve a qualifying period of employment before becoming entitled to a paid public holiday, provided the holiday falls on a day the employee is normally rostered to work ordinary hours. This would include a casual employee who is rostered on for the public holiday.
Anton Duc is workplace relations manager for the Baking Industry association (nsw employers) and industrial relations advisor for the Baking Industry association of victoria. anton advises the Baa on award modernisation and is also a practicing solicitor with a sydney law firm.