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The Casual Matrix

05 June 2019

The plethora of legal issues associated with the engagement of casual employees looks likely to become more complex in the short term.

Those legal issues arise from the Full Federal Court decision in WorkPac v Skene [2018] FCAFC 131, the Fair Work Amendment (Casual Loading Offset) Regulation 2018 and the Fair Work Amendment (Right to Request Casual Conversion) Bill 2019.

 

Skene

In Skene, the Full Federal Court held that a worker described in his contract as ‘casual’ was entitled to paid annual leave under the Fair Work Act 2009 (the Act).  The worker filled in a weekly timesheet and was paid a flat hourly rate.   He was given year-long rosters at the start of each year and consistently worked a 12 hour shift, 7 days on, 7 days off, on a fly in fly out schedule.  This decision contrasts with the commonly held assumption that an employee hired and paid as a casual employee in accordance with an award or enterprise agreement, is not entitled to paid entitlements such as annual leave.  

The principles in Skene are presently being considered by the Full Federal Court in another case involving WorkPac.

 

Other issues associated with casual employees

The Fair Work Amendment (Casual Loading Offset) Regulation 2018 was a legislative response to the decision in Skene. The purpose of the regulation is to enable employers who are sued by casual employees for NES entitlements that casuals are not entitled to, to potentially offset against those claims the amount of the casual loadings paid to the employee. However, there are various requirements that need to be satisfied in order for an employer to rely on the regulation, including that the employer pays the casual an amount that is clearly identifiable as an amount paid to compensate the person for not having one or more relevant NES entitlements.

The Fair Work Amendment (Right to Request Casual Conversion) Bill 2019 was introduced by the Federal Government before the election was called but was not passed into law. It sought to extend the right of casual employees who have worked a regular pattern of hours on an ongoing basis in the preceding 12 months to convert to permanent employment where they were not covered by an award or enterprise agreement that contained a casual conversion clause.

It will be interesting to see whether the re-elected Federal Government reintroduces this Bill into Parliament.

If you require further information or have any queries in relation to this article, please feel free to contact Mark Curran.

 

Acknowledgements

We would like to acknowledge the contribution of Hannah Plater to this article.

Further Reading