Lindsay Carroll

Lindsay Carroll

AMMA Employee Relations Lawyer, Lindsay Carroll, outlines a recent decision of the Federal Circuit Court which has found that a casual employee was entitled to annual leave during his employment with a labour hire employer. The decision will likely have implications for all employers who engage casual employees on compressed or continuous roster cycles.

The employee was engaged by Workpac as a casual dump truck operator and assigned to work at a coal mine in Queensland. The employee worked a 7/7 roster pattern and was paid a flat hourly rate that, by the terms of the applicable enterprise agreement, was inclusive of a casual loading.

Upon termination of his employment, the employee claimed that he was a permanent full-time employee and was therefore entitled to annual leave entitlements.

The Judgment

Whether a person is a casual employee or some other type of employee is a question of fact to be determined having regard to the circumstances pertaining to the particular employee. Two issues were explored by the Federal Circuit Court:

  1. Whether the employee was entitled to annual leave pursuant to the applicable enterprise agreement which applied to his employment with Workpac; and
  2. Whether the employee was “other than a casual employee” for the purposes of section 86 of the Fair Work Act 2009 (Cth) (Act) and entitled to annual leave pursuant to section 87 of the Act.

By reference to the relevant terms of the applicable enterprise agreement, the Court was satisfied that the employee was a casual employee and no entitlement to annual leave derived from that instrument. Despite this finding, the Court considered whether the entitlement could otherwise derive directly from the Act.

Judge Jarrett considered that the evidence which demonstrated that the employee was an employee “other than a casual employee” included:

  • that the employment was regular and predictable and worked in accordance with a stable and organised roster;
  • was facilitated by a fly in, fly out arrangement and the provision of accommodation at no cost to the employee;  and
  • the fly in, fly out arrangement was inconsistent with the notion that the employee could elect to work on any day and not work for others without first making arrangement with Workpac’s client.

Conversely, the evidence which supported the proposition that the employee was a casual employee included that:

  • the employee was paid by the hour and accounted for his time through timesheets submitted on a weekly basis;
  • his employment could be terminated upon one hours’ notice; and
  • Workpac designated the employee’s employment as casual and the employee was aware of and accepted that.

The Court preferred and adopted the meaning of the term “casual employment” described by the Federal Court of Australia in MacMahon Mining Services to conclude that the employee should be seen as other than a casual employee for the purposes of section 86 of the Act.

Implications

The amount of relief has not yet been determined by the Court however, the decision will have implications for all employers who engage casual employees on compressed or continuous roster cycles.

If you need advice in relation to your casual workforce, contact one of AMMA’s experienced employee relations practitioners for assistance. 

A copy of the decision is available here.