With the easing of trading restrictions for licensed premises in South Australia, the Workplace Relations team have received a number of enquiries in relation to an employer’s obligations with respect to casual employees and their hours of work once restrictions are further eased.

We look at a couple of those frequently asked questions:

Despite being eligible for the Jobkeeper Scheme I have a casual employee that has chosen to access Jobseeker payments rather than participate in the Jobkeeper Scheme. Once trading restrictions are further eased and I do have hours available for the employee, do I have to provide them with hours of work?

Despite the fact that the casual employee may have been an eligible employee to participate in the Jobseeker Scheme, the employee is under no obligation to participate in the Jobkeeper Scheme if they elect not to participate.

The casual employee in this example has chosen to access Jobseeker payments from Centrelink, however this does not in itself mean that their employment with the employer has ceased. Employment will cease where the employer informs the employee that their employment has been terminated. Their termination will be reinforced through appropriate documentation such as a separation certificate and or letter of termination.

The casual employee’s employment in this example has not been terminated and they are a regular and systematic casual employee, accordingly once the trading levels increase and there are hours available for the employer to provide to the employee, then the employer will have an obligation to provide the employee with hours of work.

In the example above, what would happen if I chose not to provide the casual employee with any hours of work despite there being hours of work available?

There would be significant risks for the employer in the example above if they decided not to provide the casual employee with any hours of work when trading restrictions were lifted, despite their being hours available.

The casual employee in the example above is a regular and systematic casual that has been employed with the business for over 12 months and therefore has the ability to lodge an unfair dismissal or general protections claim under the Fair Work Act 2009 (Cth) if there position is terminated.  

In an instance where a regular and systematic casual employee such as this is simply never put back on the roster, it will be deemed that their employment has been terminated. Without a valid reason for termination and without the employer undertaking a process of procedural fairness prior to termination, the employer would be exposed to significant risk in the event of an unfair dismissal or general protections claim.

Once the trading restrictions ease do I have to provide a casual employee with the same average hours of work that they worked prior to the shutdown?

Casual employees do not have an entitlement to a set number of hours, or an entitlement to the exact number of average hours they received prior to the shutdown. The hours that a casual employee is provided once trading restrictions are eased will be based according to the operational trading levels of the Hotel. This may mean for example that their hours gradually increase according to increases in operational demands or if there is no increase in trade it may mean that their hours remain at a low level until such time as trade picks up.

What happens if the Hotels levels of trade post the lifting of trading restrictions remain at such a low level that it is no longer viable to be able to sustain the employment of a casual employee?  

If the employment of a casual employee cannot be sustained due to poor trading levels then the employer will need to undertake an appropriate process for making the casual employee’s position redundant.

Despite the fact that casual employees are not entitled to a notice period or redundancy pay (unless specified in an Enterprise/Collective Agreement), a casual employee’s employment can still be made redundant and the employer is still obligated to follow an appropriate consultation process in line with the consultation provisions contained in a Modern Award or Enterprise/Collective Agreement.

Employers when making a casual position redundant will also still need to consider any matters to help mitigate the effects of the redundancy such as whether the employee could be redeployed in another position within the hotel.

We recommend that if a Member needs to undertake a process of redundancy they seek advice from the AHA|SA Workplace Relations Team.