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Daniel
Daniel, Solicitor
Category: Australia Law
Satisfied Customers: 5045
Experience:  Bachelor of Laws (dist) Graduate Diploma in Legal Practise. Admitted NSW Supreme Court / High Court
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My boss is trying to imply that he doesn't have any regular

Customer Question

My boss is trying to imply that he doesn't have any regular casual employees to stay under the 15 employee quota in order to avoid paying me redundancy. He has five casual employees that have worked for him continuously and consistently between 2 to five months. Do they count and can I challenge his non-payment of redundancy?
Submitted: 1 year ago.
Category: Australia Law
Expert:  Daniel replied 1 year ago.
Hello
Yes I would suggest that they do, with the information you have given me.
In respect of the matter, Fair Work, once the documents have been lodged and the like, they do look into the matter with conviction, if they see that the employer is being unethical and simply disguising the evidence so he will not pay.
Perhaps speak with your employer now and have him pay you now to avoid delay, as it seems that the outcome will not be in his interests if Fair Work get involved.
Please click accept / leave feedback.
Expert:  Daniel replied 1 year ago.
Is there anything else I need to clarify?
if not please click accept / leave feedback.
:)
Customer: replied 1 year ago.
I don't feel the question has been answered in sufficient detail. With regards ***** ***** casual employees, is there a minimum that they have to have been employed in continuous and consistent work? I.e. six months? Or is two months of consistent and regular employment enough to count?
Expert:  Daniel replied 1 year ago.
Hello
There is no set period of time, only the number of employees. The law is silent on the amount hours / days, only the number of employees is the contention that Fair Work look at.
Customer: replied 1 year ago.
I still don't feel the answer is sufficient, I'm trying to find out how to prove that the casual employees he isn't counting are actually employed on a consistent basis.
Expert:  Daniel replied 1 year ago.
Hello
The law is silent as to how many hours a person works.
They are employees, or not. The commission would not care if they worked one hour or 40 a week. If they are employed, they are employed,
Customer: replied 1 year ago.
Yes, but I'm asking about whether or not they are casual or not. What constitutes casual employment?
Expert:  Daniel replied 1 year ago.
Sorry,
In respect of casual employment, if nothing else States their title, if not on payslips, contracts etc, if they work lesser hours it would be defined as casual.
Customer: replied 1 year ago.
?? I thought you said the law doesn't recognise hours? All of the five "casuals" work in excess of 35 hours per week. They all fall under the company enterprise agreement. Will they be counted as part of the head count for my argument?
Expert:  Daniel replied 1 year ago.
It doesn't , it is in the sense as to define casual workers if there is no other definition. If there is an enterprise agreement there should be a definition as to their position being casual or not
Customer: replied 1 year ago.
These people have been employed on a casual basis. The enterprise agreement doesn't specifically define casual. However the Fair Work Act says that even if someone employed on a casual basis, if the work is on a continuous and consistent basis they can be counted in the "under 15 people" for small businesses. This would put my boss over the 15 people. This is all very ambiguous and hasn't helped me at all. I'm trying to ascertain what length of time counts as continuous and consistent.
Expert:  Daniel replied 1 year ago.
I shall opt out and let another lawyer assist
Customer: replied 1 year ago.
Who are you handing it over to?