Is a Casual Employee a Casual Employee?

His contract described him as a casual employee, however  ….

There are significant implications relating to an employee’s entitlements when considering whether the employee is a casual or permanent employee.  Rights such as notice of termination and paid leave entitlements will differ depending on the determination of that question.

In WorkPac Pty Ltd v Skene [2018] FCAFC 131 (16 August 2018) Mr Skene was engaged as a “casual or fixed term employee” under the terms of the Workpac Pty Ltd Mining Industry Workplace Agreement. He worked 12.5 hours a shift with permanent accommodation provided and regular and predictable working hours. His employment was continuous and he did not elect the days he worked.

Some time after his employment ended, Mr Skene claimed that he was not a casual employee and was entitled to annual leave benefits, as part of the National Employment Standards under the Fair Work Act.

At trial, the Court found that Mr Skene was a casual employee for the purposes of the Workplace Agreement, but that, as a matter of law, he was not a casual for the purposes of the Fair Work Act and was therefore entitled to be paid annual leave benefits.  This decision was disturbed on appeal.

The Court’s decision that Mr Skene was not a casual employee (for the purposes of the Act) included the factors referred to above, ie that he was provided with a roster twelve months in advance, had regular and predictable working hours, had continuous employment with an expectation that it would continue, did not elect the days he worked and was provided permanent accommodation.

The Court’s decision reflects a long line of authority, to the effect that it does not matter how the employer and employee view the relationship or what they might call themselves, the question as to whether or not a particular employee is a casual employee or a permanent employee (at least for the purposes of the annual leave entitlements under the NES) will be determined by the Court, as a matter of law, and based on all the factors of the employment.

In this case, the court also remarked that an employer may be able to claim a set-off against the amount owed to an employee who has successfully established an entitlement to annual leave (under the NES) if the employee has already been paid a casual loading. Workpac did not succeed in achieving this set off as in the agreement with Mr Skene, the “casual loading” was not distinguished within the hourly rate paid.

For employers, the case is a reminder of the necessity to properly manage the risks around employment.  We at Bailiwick Legal can assist employers in this area, a brief checklist will likely include:

  1. distinguishing the casual loading in an employee’s contract and their pay advice;
  2. comparing the contract of employment with actual work practices; and
  3. considering a casual employee’s work patterns and expectations, and whether the employee really has the option of not working on any day.

Employers covered by federal modern awards will also need to consider the effect of the new award provisions which provide a right for longer term, regular casual employees to request a “transfer” to permanent status.

By Philip Brunner (director)

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The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.

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