Are Casual Employees Entitled to Public Holiday payments?

A ‘Casual employee’ isn’t defined in employment legislation, but the term is usually used to refer to a situation where the employee has

• no guaranteed hours of work,
• no regular pattern of work, and
• no ongoing expectation of employment.

The employer doesn’t have to offer work to the employee, and the employee doesn’t have to accept work if it’s offered. The employee works as and when it suits both them and the employer.

This can sometimes happen because it’s hard for the employer to predict when the work needs to be done, or when the work needs to be done quickly. Each time the employee accepts an offer of work it is treated as a new period of employment.

So if the employment relationship is 'truly casual' as per above then one can assume a Casual Employee is not entitled to Public Holiday payments as they would not be asked to work on Public Holidays, but the reality is, most Casual Employees are not truly casual.

The determining fact around paid Public Holidays is the concept of an 'Otherwise Working Day' so based on these criteria:

• An employee is entitled to a paid day off work on a public holiday or alternative holiday and may take sick leave or bereavement leave, only on days that are otherwise working days for them
• If an employee works on a public holiday and the day is an otherwise working day for them, they are entitled to an alternative holiday (unless they are employed to work only on public holidays)
• Annual holidays can only be taken on days that would be otherwise working days.

An otherwise working day is a day that an employee would have been working had the day not been a public holiday, sick leave, bereavement leave, annual holiday, or alternative holiday for that employee.

If an employee is taking agreed time off without pay when they would otherwise be required to work, the day would not normally be classified as an otherwise working day.

In many cases, it’s easy to work out whether or not an employee would otherwise have worked on the day in question because the working pattern or roster is constant and the employer and employee can easily agree about whether the employee would otherwise have worked that day.'

But with Casual Employment, the above is not clear so you must consider the following:

Unclear whether a day is an otherwise working day

If it’s unclear whether the day is an otherwise working day for an employee, the things that the employee and employer must consider in trying to reach an agreement include:

• what the employment agreement says
• the employee's usual work patterns
• any other relevant factors such as:
  • if the employee works for the employer only when work is available
  • the employer's rosters or other similar systems
  • the reasonable expectations of the employer and employee as to whether the employee would have worked on that day
• if the employee would normally have worked if it wasn’t a holiday (public or alternative) or if the employee was not on leave (sick or bereavement)

The employer and employee must consider all of these factors when trying to reach an agreement, eg the employer can’t just rely on one and then conclude that the day is not an otherwise working day.

Working out whether the day is an otherwise working day is a practical task, and each situation needs to be considered based on the employee’s specific situation and work pattern.

If the day falls during a closedown period, the above factors need to be taken into account as if the closedown period weren’t in effect.

An employer can’t take an employee off the roster on a public holiday when it’s a day that they would otherwise have worked on, in order to avoid giving the employee public holiday entitlements. Not recognizing an employee’s holiday entitlements is against the law.

So the simple answer is, there is none and you will have to look at the employment relationship on a case-by-case basis.