An employer eligible for JobKeeper subsidies can claim the subsidy for a person who was a long-term casual on its books as at 1 March 2020 and who is aged 16 years or over.

The employee must meet the following requirements:

• they must have given the employer a nomination in an approved form;
• they cannot have permanent employment with another employer (although they can be a casual employee of another employer provided no nomination notice is given to that other employer); and
• they must have been employed on a regular and systematic basis during the 12 months ending on 1 March 2020.

When is a casual employed on a regular and systematic basis?

There are three main characteristics of regular and systematic employment:

1. There is a clear and consistent process for the employee to obtain shifts in a particular period.

2. Casual engagements are offered at times the employer knows the employee is generally available.

3. Casual shifts are offered regularly and the shifts are accepted regularly.

The Full Bench of the Fair Work Commission recently provided guidance in Angele Chandler v Bed Bath N’ Table Pty Ltd (2020) as to when casual employment is regular and systematic over a certain period. It stated that it is not necessary to identify a consistent pattern of engagement in the number of days worked each week, the days of the week worked and the duration of each shift. While employment must be regular and systematic, the hours worked pursuant to such employment do not need to be.

To be regular and systematic, the casual engagements must occur as part of a system, method or plan.

In Angele Chandler v Bed Bath N’ Table Pty Ltd, the Full Bench ruled that a casual’s employment was systematic if employment is the subject of a single and ongoing written contract, and a monthly roster system involving the employee having to indicate availability to work in advance and then working shifts in accordance with the roster that was subsequently prepared and posted.

The 12-month period for the purposes of the casual’s eligibility to receive JobKeeper is not broken if the casual’s employer changes within a wholly owned group of employers or because the business in which they are employed is carried on by a different entity. If the business changes hands more than once during the 12-month period, however, it appears the continuity is broken.