A recent decision of the Full Court of the Federal Court has thrown a metaphorical hand grenade into the debate as to what constitutes casual employment.

Paul Skene was employed by labour hire company WorkPac Pty Ltd. WorkPac sent him on two assignments at mining companies – one for three months in 2010 and the other, 21 months from 2010 until 2012. Even though Skene was clearly classified by WorkPac as a casual employee under its enterprise agreement and paid a flat rate inclusive of a casual loading in accordance with that agreement, the Court found that he was entitled to payment in lieu of untaken annual leave on the basis he was neither a casual for the purposes of the Fair Work Act 2009, or the enterprise agreement.

The Court also found that WorkPac was subject to a penalty under the legislation.

In reaching its decision, the Court confirmed the essence of casualness as the ‘absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work’. Mr Skene’s roster was ‘clear and predictable’ and set 12 months in advance. The Court was satisfied the ‘regularity, predictability, certainty and continuity of the pattern of Mr Skene’s work’ was correctly relied upon by the judge at first instance to establish the absence of casualness.
This decision threatens to unravel longstanding patterns of casual employment across a number of industries, especially where labour hire is involved.

The Court failed to provide any clear guidance as to what level of unpredictability is necessary for employment to be legitimately treated as casual, presumably requiring an assessment to be made on a case by case basis. In the light of this decision, we strongly recommend employers review their existing casual employment arrangements to seek to ensure the requisite ‘essence of casualness’ exists. CIE Legal’s HR Law and Strategy team can assist you with this review.

WorkPac Pty Ltd v Skene [2018] FCAFC 131 http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2018/2018fcafc0131

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