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 casual status under an agreement did not also determine whether he was a casual employee under the Act and therefore entitled to annual leave under the Act as the “finding in one does not determine the outcome of the other. That is to say, even though Mr Skene might be a casual [employee] for the purposes of the WorkPac Agreement, he may nonetheless not be a casual employee for the purposes of s.86 of the Act”.

The Court also said that “whether a person is a casual employee or some other type of employee is a question of fact to be determined having regard to the circumstances pertaining to the particular employee”.

Even though the employee was paid by the hour and his employment terminable upon one hour’s notice, the employee was employed on a shift roster on a continuous basis and had regular and predictable work which was set 12 months in advance evinced that he was not a casual employee under the Act. Further expectation was that he would be available, on an ongoing basis, to perform the duties required of him in accordance with his roster, work until the assignment was complete.  In the circumstances, the employee was entitled to paid annual leave.

Where to from here

This decision creates a lot of problems for business who need certainty from Courts on the status of employees.  Luckily the decision is being appealed and hopefully the Federal Court will provide some certainty and clarity.

If you would like to know more about this case, please contact National Workplace Lawyers on  +61 2 9233 3989.

National Workplace Lawyers

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