By Charles Power
Casuals are not entitled to paid annual leave under the National Employment Standard (NES) in the Fair Work Act 2009 (Cth).
In a recent ruling, WorkPac Pty Ltd v Skene (2018), the Federal Court examined when an employee is casual for the purposes of the NES.
The Court ruled that the essence of a casual is the absence of a firm advance obligation on the employee to provide ongoing work and similarly no firm advance commitment from the employer to offer continuing and indefinite work according to an agreed pattern of work.
The Court observed that the lack of this reciprocal obligation can manifest itself in irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability. Those features will commonly reflect the fact that, whilst employed, the availability of work for the employee is short term and not ongoing and that the employer’s need for further work to be performed by the employee in the future is not reasonably predictable.
However, the absence of these features does not necessarily mean the employment is not casual.
When an employee is labelled a casual in an employment contract and is paid a casual loading, this shows the intent of the parties to create and continue a casual employment relationship. But, the Court will still undertake an objective assessment of the employment and surrounding circumstances to consider whether that intent has been put into practice and if achieved, has been maintained.
In WorkPac Pty Ltd v Skene (2018), the Court ruled a labour hire employee supplied to work as a dump truck driver at a mine was not a casual because his employment was:
- regular and predictable, i.e. his working arrangements and shifts were set 12 months in advance in accordance with a stable and organised roster;
- continuous, save for one period of seven days that went unpaid but which was arranged with the host employer; and
- facilitated by the fly-in, fly-out arrangement and the provision of accommodation at no cost to himself, which was inconsistent with the notion that the employee could elect to work on any day and not work for others without first making the necessary arrangements with the host employer.
Moreover, there was plainly an expectation the employee would be available, on an ongoing basis, to perform the duties required of him in accordance with his roster, until such time as the assignment was complete.
The work undertaken by the employee was not subject to significant fluctuation from one day, or one week, or one month, or one year to the next. The hours of work were regular and certain.
This finding was despite the fact that the employee was paid by the hour, his employment could be ended on an hour’s notice and his employer labelled the employment ‘casual’ to the employee’s knowledge.
The Court decided the issue on the fact that the employee had no choice in the days and hours he could work at the mine. The Court ruled that it could not be said there was an absence of a firm advance commitment as to the duration of employment, or the days (or hours) the employee would work. Those matters were clear and predicable and set 12 months in advance.
The employee was paid by the hour, but not engaged as such.