Employers are warned to review their working arrangements with long term casuals following the recent decision of the Full Federal Court in WorkPac Pty Ltd v Skene  FCAFC 131.
That case resulted in an employee, who had been engaged and paid as a casual employee, bringing a successful claim against his former employer for accrued annual leave upon the termination of employment. This was notwithstanding that the employee was paid a casual rate which, as is the case with all casual employees, was intended to compensate them for not accruing leave in the way that permanent employees do. The employee in question was working at a coal mine in Queensland and had been allocated a roster set twelve months in advance.
The focus of the Court in determining whether the employee was a casual employee as a matter of law was the ongoing regularity and certainty of the work to be performed by the employee rather than the label given to the type of employment.
In the words of the Court:
“The payment by the employer and the acceptance by the employee of a casual loading like the description of the type of employment given by the parties in their contractual documentation speaks to the intent of the parties to create and continue casual employment. But the objective assessment will need to consider whether that intent has been put into practice and if achieved has been maintained. The objectively demonstrated existence of a firm advance commitment to continuing and indefinite work (subject to rights of termination) according to an agreed pattern of work will ordinarily demonstrate a contrary intent and the existence of ongoing full time or part time employment rather than casual employment. The key indicators of an absence of the requisite firm advance commitment will be irregularity, uncertainty, unpredictability, intermittency and discontinuity in the pattern of work of the employee in question.”
This decision creates considerable risk and uncertainty for employers who have long term casual employees with regular shifts. The employer cannot necessarily rely upon the fact that the employee may have been categorised and paid as a casual. As a result of this decision there may be some risk that such an employee could bring a claim for annual leave upon the termination of employment.