Recently the Employment Court has provided some helpful clarification as to what constitutes casual employment. In the case of Baker v St John Central Regional Trust Board, Ms Baker was a casual Patient Transfer Officer who claimed that her employment had become permanent over a period of time, particularly because she was regularly included on a roster. The Employment Court noted it must make an assessment of the real nature of the employment relationship. In addition to the label the parties themselves put on the employment relationship, the Court will look at the following factors when deciding if the person is permanent or not:
- Whether the engagement is for short periods of time for specific purposes
- Whether there is a regular work pattern or an expectation of ongoing employment
- Whether employment is dependent on the availability of work
- Whether there is a guarantee of work from one week to the next
- Whether the employment is ‘as and when needed’
- Whether the employer is obliged to offer work and whether the employee is able to decline work
- Whether the employee is only engaged for the specific term of each period of employment
In the Baker case, regardless of her inclusion on the availability roster, Ms Baker was under no obligation to accept work if it was offered and the employer was under no obligation to offer work. Therefore, the roster was simply an indicator of availability. The Court also looked at other factors, such as the employment agreement being very clear on what constituted casual employment, that Baker did not have to give notice to take leave and that she was paid an on-call allowance. After considering all relevant factors, the Court decided Baker was a casual employee.
This case highlights that, as with the contractor/employee distinction, not one aspect alone will be a deciding factor in whether or not an employee is genuinely a casual employee. If you are considering engaging someone as a casual employee, call us on (06) 878 5454 to talk through the specifics of your situation. Likewise, if you have a current employee who you are unsure is a casual or not and are considering reviewing the type of employment agreement they are on, please contact one of the team.