Are your casual employees actually casual?

In a landmark decision, the Federal Court on Wednesday ruled that some 'casual' workers are actually entitled to paid leave. The decision essentially redefines the definition of a casual employee.

The ruling found that casual employees who have predictable, regular and systematic shifts rostered in advance will no longer be classified casual, regardless of how their position is described in their employment contracts. This would mean the 'casuals' are entitled to paid annual leave, personal leave (sick leave) and carer's leave.

The reaction to the ruling has been mixed.

Mining union national secretary, Tony Maher, whose union was involved in the case, says the decision is positive in that it rebukes businesses who employed workers as casuals, but employed them on full-time hours. Mr Maher says the decision is 'fantastic', as "when a job is full-time, regular and ongoing, it is permanent and deserves the security and entitlements that come with permanent work."

Conversely, The Australian Industry Group says the decision revives the 'double dipping' debate. Casual employees receive a 25 per cent pay loading in lieu of benefits such as annual leave and personal leave. The Court's decision may allow casual employees to 'double-dip', reciving the 25 per cent loading and then claiming annual leave back. The Australian Industry Group believes an employee engaged as a casual and paid the casual loading of 25% should not be allowed to turn around years later and claim the entitlements of a permanent employee, such as annual leave.

In the milestone case, three Federal Court judges determined that a coal mine worker, Robert Rossato, was employed for three and a half years by the labour hire company WorkPac in six different projects as a permanent worker despite being labelled a 'casual' in his contract. During his employment, Mr Rossato received the 25 per cent casual loading. However, the court found he was still entitled to annual, personal and carer's leave, which could not be offset by the 25 per cent loading. In at least one project, Mr Rossato worked seven days on, seven days off with 12-hour shifts set in advance. Justice Mordecai Bromberg found this rostering pointed to him having work that was "regular, certain, continuing, constant and predictable" and not therefore casual.

If your business has casuals who work certain, regular hours with firm notice in advance, now is the perfect time to get in touch with our business lawyers, Siobhan Liston (03 5445 1067) or Lachlan Edwards (0427 916 442). They can give you the certainty your business needs to avoid a potentially costly situation.

For an update, visit this later article.