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Two for the price of one - Casual under the Agreement but not the Fair Work Act

Recently the Federal Circuit Court (the Court) determined that an employee employed by a labour hire company was a casual employee under the enterprise agreement but was not a causal employee under the Fair Work Act 2009 (Cth) (the Act), entitling the employee to annual leave for his period of employment. Background The employee was employed by labour hire company, Workpac Pty Ltd as a truck driver at a mine in central Queensland.  The employee was employed under the WorkPac Agreement (the agreement).  Pursuant to that agreement, the employee was employed as a casual employee. Findings The Court determined that the employee was a casual employee under the agreement as he was employed as a casual on commencement of employment.  Under the agreement, casual employees were not entitled to annual leave. However, the Court also determined that an employee’s ca...

30 January 2017

Termination by labour hire after placement terminated the contract held not to be unfair

The Fair Work Commission (the Commission) recently found that a labour hire employer did not unfairly dismiss an employee when its principal (the host employer) advised the labour hire employer it no longer wanted the services of the employee at their site.   Background   The facts are straight forward and uncontroversial. The employee was involved in a near miss incident and as a result, the host employer exercised its rights under the contract with the labour hire employer to not have that employee return to their premises. The labour hire employer did not investigate the incident and indeed had the view that the incident did not warrant the response of the host employer. Nevertheless, the labour hire employer agreed to remove the employee from the site and endeavoured to find an alternative placement for the employee but none was available. As a result, the employee's position was terminated.   At first instance<...

5 October 2016

Fair Work Commission Makes Changes to Annual Leave Provisions in Modern Awards

In July 2016, as a part of the four yearly review of modern awards, the Fair Work Commission (the Commission) introduced a number of new provisions in relation to annual leave across a majority of modern awards. These new provisions relate to taking annual leave in advance, excessive annual leave accruals, cashing out of annual leave.    Annual leave in advance   The new provision enables an employer and employee to agree in writing to take a period of annual leave in advance of accrual. A pro-forma written agreement has been included as a schedule to the modern awards.  Importantly, an employer will now be able to deduct from the monies due to an employee upon termination the amount of advance leave which has not been accrued.   Excessive leave accruals   Under this provision, where an employee has accrued more than eight (8) weeks paid annual leave, an employer can direct an employee to...

5 October 2016