In a recent landmark Federal Court ruling a Queensland truck driver, employed by Workpac, was awarded accrued annual leave despite being employed as a casual and being paid casual loadings in lieu of those entitlements. This was because it was found that he worked regular and predictable hours.
He had been employed by Workpac at two Central Queensland mines as a casual employee for a period of two and a half years.
The Court consider two issues namely:-
- whether the employee was entitled to annual leave pursuant to the applicable enterprise agreement which applied to his employment with Workpac; and
- whether the employee was “other than a casual employee” for the purposes of section 86 of the Fair Work Act 2009(Cth) (Act) and entitled to annual leave pursuant to section 87 of the Act.
The Court consider the enterprise agreement and determined that no entitlement to annual leave was derived from that agreement.
The Court did however, find that the employee was “other than a casual employee” and that he was entitled to annual leave pursuant to section 87 of the Act. In reaching this conclusion the Court examined what defines a ‘casual’ employee and said:-
“…a casual employee has no firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern of work. Nor does a casual employee provide a reciprocal commitment to the employer.”
The factors to determine if there is an advance commitment were said to be irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability.
Also relevant to many employers and employees is that the Federal Court confirmed that employment arrangements may change during the course of an employment.
“…What is agreed to at the commencement of an employment is relevant to the characterisation process, but an employment which commences as casual employment may become full-time or part-time because its characteristics have come to reflect those of an ongoing part-time or full-time employment.”
There have been calls for the Government to step in and make amendments to the Fair Work Act so as to more clearly define what a casual employee is. There have been concerns raised that as a result of this decision it may allow casual workers to effectively ‘double dip’, that is receive the casual loading amount plus the entitlements received by permanent employees. It is not clear at this point what action, if any, will be taken as a result of this decision.
Employers should be reviewing their current casual workforce to determine whether any of their employees may fall into the category of being employed on regular and predictable hours so as to be classed as permanent rather than casual. They then may want to consider whether those employees should be made permanent whilst ensuring that the process is documented very carefully.
When hiring new employees, especially in light of this decision, employers should also take extra time to determine whether ‘casual’ is the correct classification for the new employee remembering that casual employees have access to similar rights and entitlements to permanent employees such as unfair dismissal and adverse action protection.
Macrossan & Amiet Solicitors is experienced in employment law acting for employers and employees. Please contact a member of our experienced team to discuss any of your employment law related matters.