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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:
"The payment by the employer
and the acceptance by the employee of a casual loading like the
description of the type of employment given by the parties in their
contractual documentation speaks to the intent of the parties to
create and continue casual employment. But the objective assessment
will need to consider whether that intent has been put into
practice and if achieved has been maintained. The objectively
demonstrated existence of a firm advance commitment to continuing
and indefinite work (subject to rights of termination) according to
an agreed pattern of work will ordinarily demonstrate a contrary
intent and the existence of ongoing full time or part time
employment rather than casual employment. The key indicators of an
absence of the requisite firm advance commitment will be
irregularity, uncertainty, unpredictability, intermittency and
discontinuity in the pattern of work of the employee in
question."
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.
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.