Casual Ruling - The Jury's Not Out Yet! - Kaye Bromfield

A recent federal court case involving a casual worker in the mining industry who was employed on an ongoing regular casual basis for 3 years was awarded compensation in the form of payment for leave entitlements over the 3 year period even though throughout the duration of his employment he was paid 25% leave loading in addition to his wage (1). This was an unprecedented case and this decision could effect a third of Australian business’s (3) and casuals which currently make up 21% of the workforce (4).

The court ruled that paying casuals 25% leave loading does not protect employers from having to pay leave entitlements. Regular, ongoing, full-time hours and advance notice of shifts mean that a casual worker is actually eligible to receive all the benefits of a full-time employee including leave entitlements such as sick, annual and compassionate leave and payment for public holidays at the base rate if not required to work on that day (1).

What this means for your business;

Casual Ruling

• Review the amount of casual staff currently employed and their length of service.
• Review arrangements for all casual workers according to these questions;

Is the arrangement ongoing?
Are the shifts regular, predictable and scheduled in advance?
Has the casual worker been with your organisation for over a year?
Are any of the casual employees working full time hours on a regular ongoing basis?If the answer is yes to any of these questions then it is possible that a casual employee could build a case to request compensation of these benefits. However, although Fair Work Australia has published the case online, a review is being held to ascertain if changes need to be made to the Fair Work Act as to the characteristics of a casual employee and if this case will result in further class action by unions and employees.For casuals who wish to know if they are entitled to compensation in the form of payment of leave it is best to leave the conversation open but note that Fair Work Australia is still waiting on further information to update the Fair Work Act.

Some employment law experts are urging business’s in the current COVID19 climate to convert casuals to part-time employees if their work is ongoing, regular and their length of service exceeds one year.