Employers are warned to review their working arrangements with long term casuals following the recent decision of the Full Federal Court in WorkPac Pty Ltd v Skene [2018] FCAFC 131.
That case resulted in an employee, who had been engaged and paid as a casual employee, bringing a successful claim against his former employer for accrued annual leave upon the termination of employment. This was notwithstanding that the employee was paid a casual rate which, as is the case with all casual employees, was intended to compensate them for not accruing leave in the way that permanent employees do. The employee in question was working at a coal mine in Queensland and had been allocated a roster set twelve months in advance.
The focus of the Court in determining whether the employee was a casual employee as a matter of law was the ongoing regularity and certainty of the work to be performed by the employee rather than the label given to the type of employment.
In the words of the Court:
This decision creates considerable risk and uncertainty for employers who have long term casual employees with regular shifts. The employer cannot necessarily rely upon the fact that the employee may have been categorised and paid as a casual. As a result of this decision there may be some risk that such an employee could bring a claim for annual leave upon the termination of employment.
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