Retail start-ups

by Ben Desir, Workplace Advisor, NRA Legal

How did you do? Did you manage the mad dash for last minute Christmas gifts?

Chances are you brought on a number of casual members of staff to help deal with the Christmas rush. It’s also likely that a few of these casuals really stepped up to the plate.

Now that the holiday season is past us, you may be wondering “should I keep the stand-out Christmas casuals?” If the answer is yes, then the next question you might ask yourself is “should they stay as a casual employee or should I make them permanent?

If you are going to transfer an employee from casual to permanent employment here are some things to consider:

1. Do you need another permanent employee?

Consider if there is enough consistent work for another permanent employee. While permanent employees are not entitled to casual loading, they must receive a set number of hours and are entitled to annual leave, paid personal leave, overtime payments and several other entitlements. This may require more administrative work and careful planning.

2. How will the arrangement work?

If a full-time or part-time employment relationship suits you and your employee, you should then look to come to an agreement and set out the terms and conditions of their employment. The General Retail Industry Award 2010 (the Award) requires the written consent of an employee for a conversion from casual to part-time employment.

The Award also requires that at the time of first being employed, an employer and a part-time employee will agree and set out in writing a regular pattern of work, specifying at least:

  • the hours worked each day;
  • which days of the week the employee will work;
  • the actual starting and finishing times of each day;
  • that any variation will be in writing;
  • minimum daily engagement is three hours; and
  • the times of taking and the duration of meal breaks.

The requirements for full-time employees are less stringent, but nonetheless, you should aim to enter into a written agreement with all of your employees. Doing so will clearly outline the terms and conditions of employment, as well as your expectations for the employee. Work out a start date to begin full-time or part-time with your employee and look ahead to what is hopefully a fruitful and rewarding employment relationship.

3. Will you have enough hours to give the permanent employee each week, even in the quieter months?

Look back at your staffing requirements during quite periods over the 6 to 12 months (longer if necessary) and forecast projections for the next financial year to consider your needs as far as labour goes. This is worth doing as full-time or part-time employee is entitled to a set number of hours each week.

4. Can you rely on your supervisors and managers to manage the employee if they are under-performing?

Evaluate whether you have a framework in place to manage an under-performing employee.

Do you have a performance management policy in place? Are your supervisors and managers able to implement it?

It can be more difficult to part ways with an under-performing permanent employee than a casual.

So you decide to keep the employee on as a casual…..

May be to keep them as a casual employee but to increase their hours and give them regular shifts.

Are there any risks?

The short answer is yes.

They may be working regular and systematic hours, in which case they may have access to unfair dismissal laws.

Also they may actually be viewed by a court as a full-time or part-time employee, where the employer and employee have “created something which has every feature of a rooster, but call it a duck and insists that everybody else recognise it as a duck,” as one Fair Work Commissioner put it. So if you are planning to have an employee consistently work regular shifts you could avoid a headache down the track by employing them as a permanent employee, rather than trying to label them as a casual employee when their pattern of work has all the features of permanent employment.

If, after considering all these factors, you feel it would be appropriate to bring the employee on board as a full-time or part-time employee, your next step should be to sit down with your employee and discuss whether permanent employment is an option that works for both of you.

If you need any help transitioning an employee from casual to full-time or part-time employment or you would like written full-time or part-time contracts for your employees, contact the NRA on 1800 RETAIL (738 245). Our Workplace Advisors are on hand to guide you through the process and discuss the intricacies of full-time, part-time and casual employment.