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Can Casual Employees Take Sick Leave?

Can Casual Employees Take Sick Leave?

Are you a casual employee and wondering if you're entitled to sick leave? Here is everything you need to know about your leave entitlements.

12th September 2019

What is a casual? 

Casual employment is irregular, uncertain, unpredictable and intermittent. Unlike full time employment, casual employment means your working the amount you work may vary. Due to the nature of casual employment, you are not entitled to paid sick leave or annual leave. The Australian Fair Work Commission defines a “casual” as someone that: 

  • Has no guaranteed hours of work
  • Usually works irregular hours
  • Has the ability to terminate employment without notice, unless there is no contracted notice period

However, unlike other types of employment, employers pay a “casual loading” on top of your base rate of pay. This payment is a substitute for any entitlements that are listed under the National Employment Standards under the Fair Work Act 2009 (Cth). As a result, you get a higher rate of pay to the equivalent full-time or part-time employee. However, you do not get any benefits such as sick leave. A casual is quite attractive for a prospective employer as they do not have to worry about entitlements such as rights to hours, notice periods and termination. Furthermore, an employer can claim an offset for the extra “loading” that they pay to casuals come tax time pursuant to the Fair Work Amendment (Casual Loading Offset) Regulations 2018

What type of leave can a casual take?

A casual can take up to: 

  • Two days unpaid carer’s leave
  • Two days unpaid compassionate leave
  • Five days unpaid family and domestic leave in a twelve-month period
  • Unpaid community service leave, from time to time

Are you really a casual? 

Interestingly, there has been a trend in Australian case law towards distinguishing a casual employment relationship if it is not really casual in nature. Basically, if you have “regular and systematic” casual employment you may not be a casual per se, but rather be another type of employee. If so, you have other entitlements such as sick leave and annual leave.

In the cases of Bayley v Temples and Kneen-McDaid v Jaycorp Pty Ltd T/A Homestart, contracted casuals were considered as regular employees on the basis that they had a periodic employment relationship, regardless of their inconsistent hours. In these cases, both employees’ were claiming payment of their entitlements to annual leave. Of course, each case needs to be determined on their own individual circumstances. If you have any questions about your employment, we recommend that you speak to an employment lawyer.

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Author
Gianluca Tripodi

Gianluca is a legal tech intern at Lawpath. He is in his final year at the University of Technology Sydney studying a double degree of Communications (Social and Political Sciences) and Law. He is interested in the role that technology has in commercial litigation.