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Casual or permanent? If you don’t have a written contract of employment, consider it permanent

The Federal Circuit Court has held that a long-term employee was employed as a permanent employee and not as a casual as claimed by the employer. This finding was made despite the fact that the employee, although he was not provided with a written contract of employment, acknowledged that when he entered into the employment, he fully understood that he was to be engaged as a casual employee.

The Court’s finding of permanent employment was primarily made based on a clause of the Quarrying Industry Award which provided that in the absence of a contract in writing to the contrary, the employment is deemed to be permanent.

It is not uncommon for industrial instruments, and in particular enterprise agreements, to have provisions in them, similar to the Quarry Industry Award, state that unless an employee is specifically engaged as a causal, they will be deemed a permanent employee and entitled to all of the benefits of permanent employment including annual leave, personal/carer’s leave and redundancy payments.

Employers can significantly reduce the risk of a casual employee being found to be a permanent employee by providing the employee with a contract of employment. There is no need for the contract to be long or detailed – it can be a simple “one-pager” that at the very least expressly advises the employee they are a causal and, critically, clearly stipulates the rate of pay, includes a casual loading or otherwise separately identifies the amount of the casual loading.      

Apostolides v Mantina Earthmovers & Constructions Pty Ltd [2018] FCCA 279 

If you would like to know more about this case, please contact National Workplace Lawyers on (02) 9233 3989.

 

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.

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