2018 was the year that our biggest banks casually admitted to collecting fees from dead people, where the ban on single use shopping bags was a casual affair for some and a life changing crisis for many, and where the Full Court of the Federal Court determined that casuals may not really be casuals in the WorkPac Pty Ltd v Skene case even if they had been paid as casuals.
A Quick Recap on WorkPac Mr Skene’s employment conditions were covered by an Enterprise Agreement. His work was on an assignment-by-assignment basis, terminable with one hours’ notice and he was paid a flat hourly rate. However, Mr Skene’s roster was provided 12 months in advance. He worked 12.5 hour days with the same crew as a dump-truck operator, seven days rostered on followed by seven days off. Upon termination of his employment in April 2012, Mr Skene claimed annual leave entitlements from WorkPac pursuant to the Fair Work Act and under the Agreement, on the basis that despite being called a casual employee by WorkPac, his working arrangements were those of a permanent employee. The Federal Court on appeal found that Mr Skene was really a permanent employee and entitled to be paid out his accrued annual leave entitlements. Shock horror to employers everywhere that engage casual employees.
Hark the Herald Government Sings On 11 December 2018, the Federal Industrial Relations Minister, the Hon Kelly O’Dwyer proposed a recommendation for the Governor-General to implement a regulation that would see employers caught up in the WorkPac decision, not being required to pay the employee twice for the same entitlement. The practical effect of this proposed regulation is that employers who have incorrectly categorised employees as casuals, will be able to offset casual loadings already paid against any claims of backpay for entitlements such as annual leave. The Bill is yet to be released so we will keep our intrepid followers posted.
