A few things in life are certain. The sky is blue,
puppies are adorable, and casual employees don't get redundancy
pay. Maybe you weren't fully across that last one but, in our
world, it's a given. Until now.
In a recent (and, in our view, wrong) decision, the majority of
the Full Bench of the Fair Work Commission decided that, when
calculating redundancy pay, employers must recognise employees'
regular and systematic casual employment.
The Fair Work Act excludes casual employees from
redundancy pay. Nothing in the Full Bench's decision changes
that. However, in this case, the employees in question transitioned
from casual to permanent employment. Therefore, when redundancies
were rolled out, they had an entitlement to redundancy pay. In
calculating redundancy pay, their employer naturally took the
casual exclusion to mean casual service doesn't count. Makes
sense, except to the majority of the Full Bench.
The Full Bench majority brushed aside the casual exclusion in
the redundancy provisions and instead focused on the definition of
"service" under the Act. They noted that regular and
systematic casual employment is not expressly excluded from the
definition of service (which doesn't exclude any form of casual
employment) and, as a result, held that the employees' casual
service must be recognised for the purpose of redundancy pay.
We obviously don't agree. We think it's clear that the
casual exclusion to redundancy pay means casual service
shouldn't be recognised.
The decision becomes more absurd when you consider that casual
employees are paid a loading in lieu of forgone entitlements such
as annual leave, personal leave and redundancy pay! The
decision allows doubledipping. Casuals, who transition to permanent
employment, get their loading and redundancy pay. In a strong
dissenting decision, Commissioner Cambridge also warned that the
majority's decision could result in claims for annual leave and
personal leave by casuals who transition to permanent employment as
those entitlements rely on the same definition of
Employer groups are already furious about the decision, so we
don't think this is the last we'll hear about it. We'll
have to wait and see whether that's through judicial review of
the decision in the Federal Court, or lobbying for changes to the
Act. But, until then, casual service counts.
We do not disclaim anything about this article. We're
quite proud of it really.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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