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When Is A Casual Employee Really A Casual?

August 22, 2018
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By Renee Karakinos, Law Graduate, MST Lawyers and Chao Ni, Senior Associate, MST Lawyers

Introduction

The Federal Court has confirmed that employers seeking to avoid paying employees entitlements cannot simply rely on classifying workers as casuals. This is particularly true where the employee works set, inflexible hours and there is a degree of certainty about their ongoing work.

In the recent appeal case of WorkPac Pty Ltd v Skene [2018] FCAFC 131 (WorkPac), the Federal Court decided that a fly-in fly-out casual dump-truck operator was, by law, a full-time employee notwithstanding the casual agreement struck between the employer and worker.

The Workpac Decision

WorkPac operated a labour-hire business. It employed Mr Skene as a dump-truck operator between April 2010 and April 2014 on a casual basis at a coal mining operation in central Queensland.

Mr Skene claimed that the true legal relationship he held with WorkPac was one of permanent full-time employment (not casual employment) and therefore entitled to annual leave and other ancillary benefits under the National Employment Standards in the Fair Work Act 2009 (Cth).

WorkPac claimed that Mr Skene was engaged as a casual employee in accordance with its own registered collective agreement.

The issue for the Court was ultimately one of statutory interpretation of the meaning of “casual employee” under the Fair Work Act 2009 (Cth), with two competing arguments presented by Workpac and Mr Skene.

The Court decided in favour of Mr Skene, taking into account the following factors:

  • Mr Skene had a regular and predictable roster, with working arrangements and shifts that were set 12 months in advance;
  • Mr Skene’s employment was continuous and uninterrupted;
  • Mr Skene had a fly-in fly-out arrangement with Workpac, with flight and accommodation provided by WorkPac;
  • The fly-in fly-out arrangement was inconsistent with the notion that Mr Skene could elect to work on any day and not work for others without first making necessary arrangements with WorkPac’s client;
  • There was an expectation that Mr Skene would be available, on an ongoing basis, to perform the duties required of him until such time as the assignment was complete; and
  • The work undertaken by Mr Skene was not subject to significant fluctuation from one day, or one week, or one month, or one year to the next.

The Court relied upon an earlier decision of Williams V MacMahon Mining Services Pty Ltd [2010] FCA 1321, which dealt with similar facts involving a fly-in fly-out casual employee who was ultimately determined to be a full-time employee.

MST Lawyers has written about the MacMahon Mining decision here.

The Impact Of The Decision

The WorkPac decision has been, as you would expect, welcomed by union bodies and slammed by employer associations.

Meanwhile, Workplace minister Craig Laundy stated that he is “reviewing the decision and its implications”. On the other side of the political divide, the Federal Labor Party has announced plans to introduce a definition of casual employment into the Fair Work Act if it wins the upcoming Federal election.

While the political dust storm settles, all employers should review their casual employment arrangements and seek legal advice on their exposure to legal risk.

For more information, please contact our Employment Law team by email or on telephone +61 8540 0200.



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