The lack of clarity around what defines “casual’ employment
Fundamental to the work we do is understanding the definitions of permanent, temporary and casual employment. Given the landmark Federal Court decision in August it is now harder still to be able to define where the parameters are.
On August 15, the Australian Full Federal Court handed down its ruling in the WorkPac v Skene case which, subject to any appeal to the High Court or legislative intervention, is expected to have deep and long-lasting ramifications for the employment sector and those we work with and for.
Paul Skene was an employee at a Rio Tinto coal mine in Central Queensland under a labour hire arrangement with WorkPac who had employed him for two-and-a-half years. Skene had been hired as a casual employee.
Under the Federal Court ruling, Skene was found to be entitled to annual leave upon termination of his employment with the court finding that Skene, having worked in a continuous and regular pattern, was deemed as a matter of law not to be a casual employee.
Skene claimed to have been employed on a permanent full-time basis by WorkPac, while WorkPac stated he was employed as a casual employee under section 86 of the Fair Work Act (2009). Section 86 of the Act specifically states that annual leave “applies to employees, other than casual employees”.
Michael Russell, a class actions Partner with Colin, Biggers & Paisley Lawyers (CBP), told RCSA in light of the Federal Court ruling, labour hire firms engaging casuals under long-term arrangements would be wise to take action to mitigate the fundamental risks they now face, particularly with the recent rise of industrial class actions confronting labour hire firms and host employers.
“The decision, which is at odds with some previous case law and the expansion of the gig economy in Australia, has attracted significant controversy,” a paper on the ruling co-written by Russell and some of his colleagues a