A casual employee – what does that mean?

Casual employment, being used as a false label, has been a subject of intense debate and vexed litigation in the employment law space for years. However, this debate has been intensified by recent events, especially given that 40% of Australian workers are in insecure work. The “Change the Rules” campaign has been a remarkable by-product of this debate, and it has put the spotlight back on the endemic issues associated with misuse of the “casual” label.

In the litigation space, there are a few important lessons to learn about casual employment. Failing to properly classify employees is fraught with danger to businesses, and no Federal Court decision is better at illustrating such dangers than WorkPac Pty Ltd v Skene [2018] FCAFC 131.

Key Facts

Mr Skene was employed by a labour hire company called Workpac between 20 July 2010 to 17 April 2012. He was employed on an assignment-by-assignment basis as a Dump Truck Operator at a Queensland mine. The documents underpinning his employment were:

1) the “Notice of Offer of Casual Employment”; and

2) an Enterprise Agreement.

These documents characterised Mr Skene as a casual employee whose employment could be terminated with one hour’s notice. Mr Skene was also paid a flat hourly rate. At the commencement of his employment, Mr Skene was provided with a 12-month roster, where he would be required to work 12.5 hours a day on a 7-days-on and 7-days-off basis.

When Mr Skene’s employment was terminated in April 2014, he claimed that he was owed annual leave entitlements according to the National Employment Standards (NES) under the Fair Work Act 2009 and the relevant Enterprise Agreement.

In the first instance, the Judge held that given Mr Skene’s employment was regular, predictable and continuous and therefore he was not a casual employee for the purpose of the NES. As a result of this, he was entitled to annual leave under the NES. However, his employment did not satisfy the criteria of casual employment under the relevant Enterprise Agreement.

On appeal, the Court agreed with the primary Judge’s reasoning with respect to Mr Skene’s entitlement under the NES, however, unanimously rejected the reasoning in relation to the Enterprise Agreement. The Court held that whether Mr Skene was a casual employee for the purpose of the Enterprise Agreement was to be assessed in the same manner as the analysis in respect of the NES.

What This Means

This decision does not imply that casual employment no longer exists. However, it requires employers to be more conscientious about characterising their employees. The key is to regularly review the substance of the employment instead of relying on superficial labels, whether by way of contracts or agreements (verbal or written).

Adero Law is aware of the issues broadly associated with the casualised workforce, and it is taking steps to ensure that workers are properly classified and in a position to secure their rightful entitlements.

Find out more at:  https://www.aderolaw.com.au/class-actions/mt-arthur-coal-mine/

Disclaimer: The content of this publication is not legal advice. Legal advice would depend on specific circumstances. Please contact (03) 7019 9200 or Amy Nhan at amy.nhan@aderolaw.com.au.