Employers should consider whether their casual employees are in fact casual employees in substance. Relevant considerations for determining this are:
- How wages are paid: Wages paid hourly are most consistent with casual employment.
- The length of tenure: The longer an individual the employed, the less likely they are to be casual.
- The amount of work performed each week: A full-time worker is less likely to be casual.
- The consistency of hours: The more consistent the work, including starting and finishing times, the less likely the employment is casual.
There is a common misconception that casual employees can be sacked at will. Furthermore, the myth that characterising an employee as casual means that they are a casual employee at law, has also been busted.
‘Casual employee’ is not specifically defined within the Fair Work Act, and a recent decision by the Full Court of the Federal Court has shaken up the way it was once previously interpreted.
In WorkPac Pty Ltd v Skene [2018] FCAFC 131, the employee was a dump truck driver employed on a 7 days on 7 days off roster. His roster for each year was set in advance. After working for two years, the employee was dismissed. Under his contract, the employee was characterised as a casual employee and therefore had no entitlements. Due to the characteristics of his employment, he made a claim that he was inappropriately characterised as a casual employee. The issue here was whether the employee was a permanent full-time employee and consequently entitled to annual leave payments on his contract coming to an end.
In both first instance, and on appeal, it was held that the employee’s regular and predictable working arrangements meant he was entitled to annual leave under the NES – even though the offer of employment gave the employee the status of 'Casual Field Team Member' with no annual leave entitlement under the employer's enterprise agreement.
This has created a legal basis for employees to bring claims for unfair dismissal.
If you need assistance, Pragma can help you out. Contact Aaron McDonald at aaron@pragma.law or Richard Edwards at richard@pragma.law and request a call back.
