Is my Casual Employee a Casual Employee? A look into WorkPac Pty Ltd v Skene
April 19, 2023
Author name
His contract described him as a casual employee, however ...
There are significant implications relating to an employee’s entitlements when considering whether the employee is a casual or permanent employee. Rights such as notice of termination and paid leave entitlements will differ depending on the determination of that question.
In WorkPac Pty Ltd v Skene
[2018] FCAFC 131 (16 August 2018) Mr Skene was engaged as a “casual or fixed term employee” under the terms of the Workpac Pty Ltd Mining Industry Workplace Agreement. He worked 12.5 hours a shift with permanent accommodation provided and regular and predictable working hours. His employment was continuous and he did not elect the days he worked.
Some time after his employment ended, Mr Skene claimed that he was not a casual employee and was entitled to annual leave benefits, as part of the National Employment Standards under the Fair Work Act.
At trial, the Court found that Mr Skene was a casual employee for the purposes of the Workplace Agreement, but that, as a matter of law, he was not a casual for the purposes of the Fair Work Act and was therefore entitled to be paid annual leave benefits. This decision was disturbed on appeal.
The Court’s decision that Mr Skene was not a casual employee (for the purposes of the Act) included the factors referred to above, ie that he was provided with a roster twelve months in advance, had regular and predictable working hours, had continuous employment with an expectation that it would continue, did not elect the days he worked and was provided permanent accommodation.
The Court’s decision reflects a long line of authority, to the effect that it does not matter how the employer and employee view the relationship or what they might call themselves, the question as to whether or not a particular employee is a casual employee or a permanent employee (at least for the purposes of the annual leave entitlements under the NES) will be determined by the Court, as a matter of law, and based on all the factors of the employment.
In this case, the court also remarked that an employer may be able to claim a set-off against the amount owed to an employee who has successfully established an entitlement to annual leave (under the NES) if the employee has already been paid a casual loading. Workpac did not succeed in achieving this set off as in the agreement with Mr Skene, the “casual loading” was not distinguished within the hourly rate paid.
For employers, the case is a reminder of the necessity to properly manage the risks around employment. We at Bailiwick Legal can assist employers in this area, a brief checklist will likely include:
- distinguishing the casual loading in an employee’s contract and their pay advice;
- comparing the contract of employment with actual work practices; and
- considering a casual employee’s work patterns and expectations, and whether the employee really has the option of not working on any day.
Employers covered by federal modern awards will also need to consider the effect of the new award provisions which provide a right for longer term, regular casual employees to request a “transfer” to permanent status.
If you would like further information on the above case and its potential impact on your business, or assistance generally in employment matters, please contact us on (08) 9321 5451 or by email at phil@bailiwicklegal.com.au.
For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/
The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
Our June 2024 newsletter is now available. Have a read to find out what we have been up to in the first half of the year!
The International Sustainability and Carbon Certification (ISCC) System has come to the attention of many Western Australian farmers recently, as the scheme has changed one of its policies regarding aerial spraying. What is the ISCC? The ISCC is one of the world’s largest voluntary sustainability certification schemes enabling participants to demonstrate they are producing materials in a sustainable way that meets or exceeds community expectations. In Australia it is widely used in the canola industry, enabling Australian canola growers to access the European biofuel market. CBH Marketing and Trading holds certification for the ISCC EU and ISCC PLUS programs, that cover canola, barley, oats, wheat and lupin, allowing WA growers to participate in both programs. Participating in the ISCC program can result in a premium on grain, however participants are subject to more stringent measures to satisfy sustainability accreditation requirements. Recent decision on aerial spraying ISCC Principle 2.6.2 prevents aerial spraying from taking place within 500 metres of a body of water. CBH has successfully lobbied for an exemption to this Principle, for farm dams and salt lakes of low ecological value. As part of its lobbying, CBH provided expert reports to the ISCC on the hydrology and ecology of WA farm systems. For farmers who are signed up to the ISCC program, this removes an obstacle during the season for weed management. The Principle does still require a 500 metre buffer for other bodies of water, including freshwater lakes, rivers, ponds or creeks. However, for those who farm yabbies and marron, this change may not be welcome. Marron and yabby farmers have noticed impacts on their populations where aerial spraying has taken place close to their properties, and aerial spraying can unintentionally damage natural vegetation, including young and old growth trees. For growers, it’s always prudent to follow best practice guidelines for aerial spraying to avoid spray drift – including monitoring weather conditions and the effect of water added to the chemical. For some farmers, this decision may prompt an examination of whether signing up to the ISCC program might be best for their business. In this circumstance, it is important to weigh up the potential benefits of the program compared to the sustainability accreditation requirements. For others, this decision is a timely reminder to stay up to date with best practice guidelines when it comes to spraying, particularly during the seeding season. For assistance with all of your agribusiness needs, contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au By Ciara Nalty (Solicitor) For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
How does the Annual Wage Review affect workers and small business owners? Each year, the Fair Work Commission reviews the National Minimum Wage and the minimum wages set out in awards. Cost of living and inflation are front of mind for both employers and employees, and this year’s Annual Wage Review is likely to see an increase in the minimum wage and award rates. The Annual Wage Review is conducted by an Expert Panel, which takes submissions from interested groups, including the Federal Government, unions, and business lobby groups. The Federal Government’s submission to the Wage Review this year called for an increase to the minimum wage, though not specifying an amount. The Australian Chamber of Commerce and Industry has advocated for an increase of 2 per cent, at most. The announcement will likely take place in early June and any increase to the national minimum wage will take effect in the first full pay period on or after 1 July 2024. Failure to pay employees at least the minimum rate that is set out in an applicable award can result in penalties, including requirements for back pay and fines. The Fair Work Ombudsman uses its enforcement powers to issue compliance notices to employers, and recovered $14.8 million in unpaid wages in 2022-23. Small and medium businesses are subject to the same scrutiny as large businesses. For business owners, this is a timely reminder to review employment agreements and payments to staff. You should be conscious of which awards cover your staff members, as award rates for each level increase commensurate with the national minimum wage increase. It is also important to be aware of employee entitlements and set-offs, to ensure you are paying employees what they’re entitled to and avoiding future claims. If you are not sure what award your employee is covered by, have a question about employment conditions or require any other assistance with employment and workplace matters contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au . By Ciara Nalty (Solicitor) For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
Working with you, working for you
