In 1936 the High Court of Australia described casual employment
as intermittent or irregular work. It is fair to say that
employment, and casual employment, has evolved since then;
"Toto, I have a feeling we're not in Kansas
Employers breathed a sigh of relief when the Full Bench of the
Fair Work Commission acknowledged as much.
In the decision of Telum Civil (Qld) Pty Ltd v Construction,
Forestry, Mining and Energy Union  FWCFB 2434, the Full
Bench found that a casual engaged and paid as such, who received
the benefit of a casual loading to compensate them for entitlements
otherwise applying to permanent employment, would be double dipping
if they then sought to recover entitlements associated with
Makes sense, right? Sure, at the time the decision drew comment
given it did depart from the established common law
characterisation of casual, but equally, logically and given the
evolved industrial context, the decision made perfect sense.
Indeed, the Federal Court jumped on board in Fair Work
Ombudsman v Devine Marine Group Pty Ltd  FCA 1365.
"The word "engaged" [in the
context of engaged and paid as a casual under a modern award]
is directed to the agreement made between the parties rather
than to the manner and circumstances in which the employee does in
fact carry out his or her work", White J said.
Yet, in Skene v Workpac Pty Ltd  FCCA 3035 (24
November 2016), the Federal Circuit Court of Australia applied the
dated "common law definition" to find that an employee,
paid and engaged as a casual under the enterprise agreement, was
entitled to annual leave under the Fair Work Act.
Absolutely, particularly given the Federal Circuit Court found
that Mr Skene was a casual employee within the definition under the
The facts in short are these. Mr Skene was employed under an
enterprise agreement. He was paid a higher hourly rate that
included the casual loading. The enterprise agreement expressly
provided "[t]he casual loading is in lieu of all paid
leave entitlements (with the exception of long service
Seems pretty clear, right?
Although the Federal Circuit Court made reference to the
Telum decision, in our view, it failed to apply the most
fundamental aspect of the decision:
We conclude that on the proper construction of the
FW Act the reference to "casual employee" in s.123(3)(c)
and the rest of the NES - and, indeed, elsewhere in the FW Act - is
a reference to an employee who is a casual employee for the
purposes of the Federal industrial instrument that applies to the
employee, according to the hierarchy laid down in the FW Act
To do otherwise makes the system of industrial regulation
uncertain and unpredictable for business and employees.
Unfortunately, the decision in Skene ignores that an enterprise
agreement is made under the Fair Work Act and given
statutory force by the Act. Parliament did not define "casual
employee" under the Act. Parliament knew it was allowing a
scheme where modern awards and enterprise agreements would do so.
The scheme is markedly different from 1936.
In our view, the Federal Circuit Court simply got it wrong, and
we will find out in any appeal or challenge to the decision (which
As a side note, it's interesting to observe that the Federal
Circuit Court failed to entertain the employer's cross claim in
restitution. This appears to be because the cross claim was filed
out of time. But it does signal an avenue for aggrieved
Better still, consider making an offset express in your
enterprise agreement or contracts. Tell the employee upfront they
are casual and on that basis only you are paying them the loading
in lieu of specific paid leave entitlements.
Though not relevant to the legal analysis, the facts in
Skene did not help the employer. Mr Skene's engagement
was titled "Notice of Offer of Casual Employment".
However, the terms did not reflect what is typically casual
employment. The contract spoke about "a standard work week of
38 hours", "3 months" assignment and a "falt
rate of $50.00 per hour". Management of the engagement could
have been much better.
In the meantime, as is increasingly too often the case for
employers, confusion and uncertainty reigns.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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