Workplace Employment Arrangements - Don't be too casual!

In Workpac Pty Ltd v Skene [2018] FCAFC 131 (16 August 2018) the Full Federal Court held that whether an employee is a “casual” is assessed by analysing “the real substance, practical reality and true nature of the relationship” rather than merely the description the parties may have given to the employment relationship.  The Full Court emphasised that “casual” employment required that there be no certainty about its duration and that its nature be informal, uncertain and irregular.  The Fair Work Act does not provide a definition of casual employee.

The Full Court considered the legal status of a labour hire employee who had been engaged as a casual at a Rio Tinto mine (and had signed a casual contract) to work a weekly rotation roster (7 days on, 7 days off).  The Full Court held that he was entitled to annual leave as if he had been a permanent employee on the termination of his employment.

The Full Court found that:

“employment which commences as casual employment may become full-time or part-time because its characteristics have come to reflect those of an ongoing part-time or full-time employment”

In light of the decision, regular or long-term casuals who are in fact permanent will be entitled to paid annual and personal leave and other relevant benefits applicable to permanent employees.

Nigel Wilson