A recent casual employment court decision has had the industry on tenterhooks
The brevity of this article will simply not allow a detailed analysis of the recent Full Federal Court decision in Workpac Pty Ltd v Skene (Skene), but the short answer is that as a consequence of the decision in Skene, there will be no doomsday, nor will the sky fall down.
Contrary to the mass hysteria that has surrounded this decision, at least from a legal point of view, there is nothing at all remarkable with the decision itself. The court has simply confirmed what the common-law position has always been with respect to defining casual employment. Further, the court has confirmed that the national employment standards (NES) will take precedence over any award or any industrial instrument.
Workpac had engaged Mr Skene as a causal employee on a “fly in fly out” basis at a mine operated by Rio Tinto. His letter of appointment said that he was a casual and that he would be engaged on an assignment for a period of three months. His employment was covered by a workplace agreement that characterised Mr Skene as a casual.
He worked on a continuous roster, seven days on, seven days off and the roster was predictable 12 months in advance. His hours were regular and predictable and did not fluctuate. His was paid a flat hourly rate, which did not express to be inclusive of a casual loading or purport to offset any entitlements under the NES. Rather than three months, his period of employment continued for 22 months.
As such, one observation made by the court was that employers could not simply characterise a casual employee as one if, in fact, when objectively assessed, the casual employee is in fact, under law, not a casual employee.
Opinion: Assess and reduce risk. Read more, here
Perhaps the old saying is apt, if it walks like a duck and quacks like a duck…!
The court formed the view that employees in continuous employment did not fall within the scope of the expression “casual employee” for the purposes of section 86 of the Fair Work Act. Further, that phrase was not defined and therefore the court had to determine whether parliament had intended, when drafting legislation, to give the phrase “casual employee” its ordinary legal meaning.
The court ultimately found that it should distinguish casual employment from full-time or part-time employment, which it said “is characterised by a commitment by the employer, subject to rights of termination, to provide the employee with continuous and indefinite employment according to an agreed pattern of ordinary time (as distinct from overtime) work. A corresponding commitment to provide service is given by the employee.”
And: “In contrast, a casual employee has no firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern of work. Nor does a casual employee provide a reciprocal commitment to the employer.” That characteristic is “any commitment by the employer or the worker to ongoing employment”.
In our view, what is referred to in Hamzy as the “essence of casualness”, captures well what typifies casual employment and distinguishes it from either full-time or part-time employment.
Ultimately, the court found that Skene was not a casual.
What the decision does mean however is that it will be extremely important for employers to review their existing on relationships with their casual employees and ask themselves:
• Do my agreements make clear enough that casual employees are receiving a casual loading?
• Are the casual employees that I engage working on the same hours that my permanent employees working?
• Do my agreements give my casual employees an expectation of ongoing employment?
• Should any of my casual employees, given the number of hours they have been working and their tenure, be offered full-time employment?
Maurice Baroni is a barrister at Denman Chambers