A ‘Casual’ Complication: Why it’s Important to Characterise your Employees Correctly

15 Nov A ‘Casual’ Complication: Why it’s Important to Characterise your Employees Correctly

In WorkPac Pty Ltd v Skene [2018] FCAFC 131, the Full Court of the Federal Court found that a labour hire worker employed as a casual was in fact an employee entitled to leave payments under the National Employment Standards (NES) under the Fair Work Act 2009 (Cth) (‘Fair Work Act’).

The NES are 10 minimum employment entitlements that have to be provided to all employees in the national workplace relations systems. The NES are outlined in Part 2-2 of the Fair Work Act. Under section 86 of the Fair Work Act, annual leave applies to employees “other than casual employees”.

Mr Skene was employed by WorkPac Pty Limited (WorkPac), a labour hire company, as a dump-truck operator. During his employment, the roster was set in January for a 12-month period, and he worked 7 days a fortnight, for 12.5 hours a day.

The Court held that casual employment is characterised by ‘no firm advance mutual commitment to continuing and indefinite work according to an agreed pattern of work’. Accordingly, employees in continuous employment are not within the scope of the expression ‘casual employee’ for the purposes of section 86 of the Fair Work Act.

Mr. Skene’s employment was “regular and predictable”, and “continuous”, his employment does not meet the standards of a casual employee. Therefore, section 86 of the Fair Work Act did not apply, and he was entitled to annual leave.

This decision confirms that it is the substance of the employment agreement that will determine the employee’s rights under the Fair Work Act, rather than the form.