Australia Casual Employment FAQ: Closing Loopholes 2024 Reform

The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (operative 26 August 2024) substantially reshaped casual employment in Australia. The casual definition under Fair Work Act 2009 (Cth) s.15A was rewritten, casual conversion was replaced with an “employee choice” regime under s.66B, and intentional underpayment was criminalised under s.327A from 1 January 2025. This FAQ answers the questions Australian employers most often ask in 2026.

Q1. Who is a “casual employee” now?

Under Fair Work Act 2009 (Cth), s.15A (as rewritten by Closing Loopholes No. 2 Act 2024), a person is a casual employee if:

• (a) The employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and
• (b) The employee is entitled to a casual loading or specific casual rate of pay under a fair work instrument or the contract.

Both limbs must be satisfied. Whether there is a “firm advance commitment” is determined on the practical reality and true nature of the employment relationship — looking at the totality of the conduct, not just the contract. This is a substance test that supersedes the previous WorkPac v Rossato (2021) and 2021 statutory framework.

Q2. What is the casual loading and how much is it?

The casual loading is typically 25% on top of the ordinary hourly rate. It compensates for the lack of paid annual leave, paid personal/carer’s leave, redundancy pay, and notice of termination that permanent employees receive.

Where the National Minimum Wage applies (currently A$24.95/hour from 1 July 2025), a casual is entitled to at least A$31.19/hour (NMW × 1.25). For award-covered casuals, the loading is applied to the relevant award classification rate.

Reference: https://www.fairwork.gov.au/pay-and-wages/minimum-wages

Q3. Did “casual conversion” disappear?

Largely yes — at least in its previous form. The previous “employer offer” model (where the employer was required to offer permanent conversion to long-term casuals after 12 months) has been replaced by an employee choice model under Fair Work Act 2009 (Cth), s.66B.

Under s.66B, an eligible casual may at any time after 12 months of employment notify the employer in writing that they believe they no longer meet the casual definition under s.15A. The employer must respond in writing within 21 days, either:

• Accepting and converting the employee to permanent (full-time or part-time as appropriate); or
• Refusing on prescribed grounds in s.66E (e.g. the employee still meets the s.15A casual test, would result in significant adjustment to hours, fair and reasonable operational grounds).

If the employer refuses, the employee may seek dispute resolution at the Fair Work Commission.

Q4. What documentation must I give a new casual?

Two statutory information statements:

1. Fair Work Information Statement (FWIS) under s.124 — given to every new national-system employee before, or as soon as practicable after, they start. https://www.fairwork.gov.au/employment-conditions/information-statements/fair-work-information-statement
2. Casual Employment Information Statement (CEIS) under s.125B — given at engagement and again at 6, 12 months and every 12 months thereafter. Small business employers (fewer than 15 employees): at start and at 12 months from the 26 August 2024 amendments. https://www.fairwork.gov.au/employment-conditions/information-statements/casual-employment-information-statement

Failure to provide either is a civil penalty contravention under s.539.

Q5. Do casuals get any paid leave?

Casuals do not accrue annual leave or paid personal/carer’s leave — the 25% loading compensates.

However, casuals are entitled to:

• Paid Family and Domestic Violence (FDV) leave — 10 days per year (Fair Work Act 2009 (Cth), s.106A; effective for non-small business from 1 February 2023, small business from 1 August 2023). The 10 days renews in full each 12 months and is not pro-rated. This applies to all casuals — a frequent compliance gap.
• Compassionate leave — 2 days unpaid per permissible occasion (s.104).
• Unpaid carer’s leave — 2 days unpaid per occasion (s.102).
• Long service leave under the applicable state Act (depending on continuity of service).

Q6. What about public holidays?

Under Fair Work Act 2009 (Cth), s.114, casuals do not receive a paid day off on a public holiday in the same way as permanents. However, if a casual works on a public holiday, the modern award typically pays a public holiday rate (often 200%–250% of the casual base rate).

The employer must request the work — assuming the casual will work without a request is a contravention (Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51). The casual may refuse if the request is unreasonable or the refusal is reasonable (s.114(3)).

Q7. Can I roster a casual on a regular weekly pattern?

Yes — but be aware that a regular and systematic pattern of work over a long period is a factor against casual classification under s.15A. A casual rostered for 30 hours per week, every week, for 18 months, with predictable shifts, is at high risk of being held to be permanent in substance — regardless of what the contract says.

The Closing Loopholes No. 2 Act 2024’s substance test means that calling someone a casual does not make them one. The s.15A factors look at the practical reality, including:

• Whether the employer can offer or not offer work;
• Whether the employee can accept or reject offered work;
• Whether the work will continue indefinitely or is genuinely intermittent;
• Whether the casual loading is genuinely paid.

Q8. What is the casual employee/contractor distinction?

Closing Loopholes No. 2 Act 2024 also inserted Fair Work Act 2009 (Cth) s.15AA — the employee/contractor “whole of relationship” test. A worker is an employee if the real substance, practical reality and true nature of the relationship is employment, looking at the totality — not just the contract. This reverses the contract-led approach in CFMMEU v Personnel Contracting (2022).

Implication: a casual labelled “contractor” in the contract who works under high control, integration, and economic dependence will be reclassified as an employee — with retrospective NES, super, and leave entitlement exposure.

ATO guidance: https://www.ato.gov.au/businesses-and-organisations/hiring-and-paying-your-workers/contractors

Q9. Do casuals get superannuation?

Yes. Under the Superannuation Guarantee (Administration) Act 1992 (Cth), s.19, casuals receive 11.5% (rising to 12.0% from 1 July 2025) of ordinary time earnings, paid quarterly to the chosen or stapled fund. The previous A$450/month threshold was abolished from 1 July 2022 — every dollar of OTE attracts SG.

Q10. Are casuals entitled to redundancy?

No — casuals are not entitled to redundancy pay under Fair Work Act 2009 (Cth), s.119. The 25% casual loading compensates for the absence of redundancy entitlement (alongside annual leave and notice).

Q11. What about notice of termination?

Casuals are not entitled to statutory notice of termination under Fair Work Act 2009 (Cth), s.117. Either party may end the casual engagement at the conclusion of any shift without notice. The 25% loading compensates.

If the casual was incorrectly labelled — and is in substance permanent — then s.117 notice (1–4 weeks based on service) does apply. The risk of misclassification cuts both ways.

Q12. What is the wage theft criminalisation?

From 1 January 2025, Fair Work Act 2009 (Cth) s.327A (inserted by Closing Loopholes No. 2 Act 2024) makes intentional underpayment of wages or entitlements a criminal offence. Maximum penalties:

• Individuals: 10 years imprisonment / fines up to the greater of 3× the underpayment or 5,000 penalty units;
• Body corporate: fines up to the greater of 3× the underpayment or 25,000 penalty units.

The Voluntary Small Business Wage Compliance Code provides a defence path for small businesses that take reasonable steps to comply.

Q13. What is the high-income threshold and does it apply to casuals?

Under Fair Work Act 2009 (Cth), s.382(b)(iii), employees earning above the high-income threshold who are not covered by a modern award or enterprise agreement cannot bring an unfair-dismissal claim. The threshold is indexed each 1 July.

For casuals, the unfair-dismissal eligibility separately requires the casual to have been employed on a regular and systematic basis with a reasonable expectation of continuing employment. Pure ad-hoc casuals do not have unfair-dismissal access.

Q14. What about casual loading “double-dipping”?

Where a casual is later found to have been permanent in substance, the previous statutory framework allowed the court to offset the casual loading already paid against the permanent leave entitlements claimed retrospectively. Under the Closing Loopholes amendments, this offset mechanism is preserved in modified form — the court may take into account loadings already paid when calculating any back-pay liability.

Q15. What records must I keep for a casual?

The same as for any other employee under Fair Work Act 2009 (Cth), s.535 — records must be kept for 7 years, including hours worked each pay period, wages paid (with casual loading shown), accrued leave (FDV), and superannuation contributions. Pay slips must be issued within 1 working day of payment under s.536.

Conclusion

The 2024 Closing Loopholes reforms moved Australian casual employment from a label-based to a substance-based regime. The s.15A casual definition turns on practical reality; the s.66B employee choice replaces employer-offer conversion; the s.15AA employee/contractor test cuts both ways; and s.327A wage theft criminalisation raises the stakes of getting any of this wrong. For employers in 2026, the discipline is to align contract, payslip, and roster with the substance of the relationship — and to deliver the FWIS, CEIS, and 25% loading on day one.

Create your CEIS-compliant casual contract with Scrib🐮

¥22,000/month pass for unlimited access to all 18 document types across 7 countries. Start Free Preview →

Disclaimer

Legal information, not legal advice. MmowW Scrib🐮 is operated by a licensed Gyoseishoshi (行政書士) office in Japan. We are not solicitors, barristers, or migration agents.

Sources

• Fair Work Act 2009 (Cth): https://www.legislation.gov.au/Series/C2009A00028
• FWO — Casual Employment Information Statement: https://www.fairwork.gov.au/employment-conditions/information-statements/casual-employment-information-statement
• FWO — Fair Work Information Statement: https://www.fairwork.gov.au/employment-conditions/information-statements/fair-work-information-statement
• ATO — Hiring contractors: https://www.ato.gov.au/businesses-and-organisations/hiring-and-paying-your-workers/contractors
• FWO — Minimum wages: https://www.fairwork.gov.au/pay-and-wages/minimum-wages