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casual employment rights

Doubt about status of casual employment

A recent decision of the Federal Circuit Court has cast doubt on whether casual employment is in fact that: Skene v WorkPac Pty Ltd [2016] FCCA 3035.

Mr Skene was employed as a dump truck operator by WorkPac, a labour hire company, which supplies workers to mines. His contract of employment with WorkPac designated him as a casual employee and he was paid a fixed hourly rate.

During his employment with WorkPac he had two placements at mines in Queensland. The second mine operator removed him from the mine and he did no further work for WorkPac.

After his employment terminated Mr Skene issued proceedings against WorkPac seeking payment of accrued annual leave, other consequential entitlements and pecuniary penalties. 

Judge Jarrett found that, according to his contract of employment with WorkPac, Mr Skene was a casual employee. This, however, did not mean that Mr Skene could not be entitled to annual leave and other entitlements. Although section 86 of the Fair Work Act states that provisions relating to annual leave apply other than to casual employees Mr Skene needed only to establish that his employment was something other than casual to receive entitlements associated with permanent employment.

Judge Jarrett identified six factors that weighed in favour of Mr Skene’s employment being other than casual:

  1. It was regular and predictable under 7 days on and 7 days off rosters set 12 months in advance;

  2. Apart from one short period arranged with the second mine owner, was continuous;

  3. It was facilitated by travel and accommodation provided at no cost to him;

  4. The FIFO arrangement was inconsistent with the notion that Mr Skene could elect the days on which he worked without making the necessary arrangements with the mine owner;

  5. There was an expectation arising under the contract of employment between him and WorkPac that he would be available according to the roster provided to him until the assignment was complete; and

  6. The hours of work were regular and certain as demonstrated by his pay slips.

    As against that Judge Jarrett found three factors that weighed in favour of Mr Skene being a casual employee:

  7. He was paid by the hour and had to submit weekly time sheets;

  8. His employment was terminable on one hour’s notice; and

  9. WorkPac designated his employment as casual and Mr Skene was aware of and accepted that.

Ultimately, Judge Jarrett found that the essence of casual employment, which is the absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work, was missing in the employment relationship between Mr Skene and WorkPac.

As the employment was something other than casual, Mr Skene became entitled to annual leave, which is not a benefit of casual employment.

Although the decision could be said to be limited to its particular circumstances, it might be seen as applying in circumstances where employer and employee believe that casual employment applies but in reality given the certainty of hours and absence of choice as to when an employee works, the employment relationship is in fact other than casual.

Unfair Dismissal – Your worker has been with you for HOW long?

How long does an employee have to be employed before they’re eligible to make an unfair dismissal claim?  The short answer is “that depends on the size of your business.”  If you’re a small business, the employee will have 12 months before they can claim eligibility. If you employ more than twelve employees, they will only have six months. But how is that six months calculated?

In Emma Wells v ABC Blinds & Awnings [2016] FWC 8260 the worker was employed between 4 February 2016 and 4 August 2016. She was originally engaged as a casual employee for the first three months and was later offered a permanent position, which she retained for another three months.

It’s important to note that during her casual employment, the worker worked regularly on a roster based system and took two days of unpaid leave within this period. 

The worker was sacked shortly after arriving at work on 4 August 2016 – exactly six months after her first day of work with the Employer.

The Employer argued that 1) the Applicant’s service as casual employee should not be included when calculating continuous service and 2) if the casual employment were deemed to be included, her continuous service would not add up to six months as she had taken two days off during that time. 

The Fair Work Commission found that the Applicant’s employment was regular and systematic and therefore it could be included as part of her continuous service.

However, in light of the unpaid leave taken during her casual employment, the Applicant was found not to have served the minimum employment period, meaning she was not a person protected from unfair dismissal and her application was dismissed.  

So what are the lessons here?

  1. A worker’s casual employment may be classified as continuous service for the purposes of the unfair dismissal laws depending on the regularity of their work schedule and also their expectations of future employment.

  2. Any unpaid leave taken during casual employment will not break an employee’s continuous service, but it will also not contribute their continuous service with an employer.

If this all sounds too confusing and overwhelming, never fear! Call one of the workplace relations lawyers at Nevett Ford on (03) 9614 7111 for advice and assistance on all of your employment law matters.