A worker who refused a permanent part-time role with fewer hours per week than he was receiving as a casual, has won compensation from the Federal Court.

In Tomvald v Toll Transportation Pty Ltd (2017), Toll employed Mr Tomvald as a casual employee for almost 10 years. In the 12-month period prior to Mr Tomvald making his application for permanency, he had been working 38 hours per week.

Toll offered Mr Tomvald permanent part-time status working 30 hours per week. He rejected the offer and commenced proceedings in the Federal Court. He argued that Toll had breached the casual conversion clause of its enterprise agreement, which required him to be converted to a similar permanent status as he had been engaged in as a casual employee.

The Federal Court held that Toll had breached the enterprise agreement which required Toll to offer Mr Tomvald permanent employment on a like-for-like basis, which was as a permanent full-time employee, not permanent part-time status.

Lesson for you

If you have casual employees in your workplace, check the terms of any casual conversion clause in the applicable modern award or your enterprise agreement to ascertain your obligations.

If you have casual workers employed for an extended period and they are in essence doing the job performed by a permanent employee, consider converting them to permanent status. If you don’t, the casual may later claim at common law they were a permanent employee and seek redress for unpaid annual leave and personal/carer’s leave.