Landmark case sees casual workers potentially entitled to paid leave
Yesterday May 20th, 2020 the Federal Court has found that some "casual" workers who worked regular and predictable shifts with a firm expectation and commitment to future work were not actually casuals.
Consequently, despite what they were labelled in employment contracts, they are entitled to be paid annual, sick and carer's leave.
The Court found black coal mine worker Robert Rossato was employed for three and a half years until 2018 by the labour hire company WorkPac across different projects as a permanent worker (even though his contract described him as a "casual").
Rossato worked across six contracts and was paid what WorkPac described as a 25% casual loading which was built into his wage.
However, the Court found he still had an entitlement to leave that could not be offset through the wage bump since it did "not have a close correlation" to the leave entitlements.
Rossato worked seven days on, seven days off under at least one of his contracts with 12 hour shifts set in advance, which was not casual work, but work that is "regular, certain, continuing, constant and predictable", according to the ruling.
This obviously has significant implications to the casual workforce and the Government will need to urgently review and amend the Fair Work Act to provide greater clarity. Industry groups have commenced lobbying the government to clarify the definition of a casual employee and we will keep you updated on this progress.
What should you do now?
We recommend that you review your casual arrangements and understand any casual employees who have regular and predictable shifts.
Where possible consider transitioning them to part-time or full-time employment, however if this is not practical for your business, it is important to ensure you put in place processes to ensure casuals are engaged as such.
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