The Case

Mr Skene was employed by Workpac Pty Ltd (Workpac) as a dump truck operator in a Queensland coal mine. Mr Skene signed a contract of employment that stated he was employed as a casual or fixed-term contract employee, and his employment could be terminated on 1 hour’s notice.

In July 2010, Mr Skene was provided with a Notice of Offer of Casual Employment.

He worked 12.5-hour shifts over a 7-day roster, which was determined 12 months in advance. He worked continuously according to the roster. Mr Skene was paid a higher hourly rate that included casual loading.

In April 2012, Mr Skene’s employment was terminated following allegations about his conduct and behaviour.

On termination, Mr Skene claimed that as he was continuously employed by Workpac, he was entitled to be paid out 6 weeks of annual leave and annual leave loading.

Workpac disputed this, saying he was not continuously employed but was employed on a series of separate engagements.

Workpac relied on:

• clause 19.1.1 of the Workpac Pty Ltd Mining (Coal) Industry Workplace Agreement 2007 (the Agreement), which provided for annual leave entitlements only to permanent employees, not casuals, and Mr Skene’s employment fit within the casual employee definition in the Agreement; and
• sections 87 and 90 of the Fair Work Act 2009 (Cth) (FW Act).

The Verdict

Judge Jarrett of the Federal Circuit Court held that Workpac’s assessment of the Agreement was correct and it did not avail Mr Skene of an entitlement to annual leave or annual leave loading.

However, Judge Jarrett held, pursuant to section 86 of the FW Act, annual leave is available to employees “other than casual employees”. Accordingly, Judge Jarrett said he had to consider whether Mr Skene was a casual employee under the common law.

Judge Jarrett found Mr Skene had:

• regular and predictable employment according to a set roster with lack of choice in work arrangements or shifts;
• continuous employment; and
• an expectation that he was to be available on an ongoing basis to perform the duties of his position.

As such, Judge Jarrett was satisfied that Mr Skene was not a casual employee at common law and therefore had an entitlement to annual leave under section 86 of the FW Act.

Lessons For You

An employee who is truly a casual employee under the common law is someone who:

• performs work on a non-ongoing basis;
• normally chooses when to work;
• has no guarantee of ongoing employment; and
• has their employment contract end when each engagement ends.

It is likely the Skene decision will be appealed on the basis that the terms and conditions of the Agreement should apply.

In the meantime, you should carefully review your rostering arrangements for casual employees to ensure your casual employees are not used on a regular and systematic basis to perform the same hours and/or set shifts.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.