The distinction between casual, full-time and part-time workers appears to be relatively straightforward. Casual workers are normally not entitled to paid annual or sick leave. Instead, they are paid casual loading of 25%. Recently, the Full Court of the Federal Court made findings in relation to the characteristics of a casual employee. It is common knowledge that certain benefits apply to different types of employment. However, a recent case in the Federal Court has addressed issues regarding casual workers and their entitlement to paid leave in certain circumstances. In this article, we review the meaning of a ‘casual worker’, the outcome of this recent case and what this case means for employees and employers alike.
Who is a casual worker?
A casual worker is an employee who does not have fixed obligations in relation to the length of time they will be employed and the hours they will work. They also do not receive paid leave such as sick or annual leave. A casual employee is usually required to work based on a roster, but this roster can change weekly and shifts are not guaranteed.
To compensate for the lack of commitment and uncertainty, casual workers are paid ‘casual loading’. Casual loading means the worker is entitled to a higher rate of pay than full-time or part-time employees working in a similar role.
A recent update in the law.
On 20 May 2020, the Full Court of Federal Court handed down a decision which affirmed that the casual workers who work with a predictable shift schedule and the commitment to work for a set period of time, or indefinitely were not casual workers despite how their employment contract classified them. These workers are entitled to paid leave, such as annual, sick and carer’s leave.
In this particular case, Mr Rossato, a coal miner, was employed for three and a half years by a labour hire company called ‘WorkPac’. Mr Rossato worked on a variety of different projects as a permanent employee despite being labelled ‘casual worker’ in his employment contract. Justice Bromberg found that the fact that Mr Rossato’s work pattern was assigned well in advance under a set roster, which necessitated on-going work during “the standard work week”, revealed that his employment was ‘regular, certain, continuing, constant and predictable’. These features were not that of a casual worker.
WorkPac argued that the total amount of casual loading paid to Mr Rossato ought to be off-set against the annual and sick leave to be paid to Mr Rossato. The Full Court rejected this argument.
What does this mean for employees and employers?
It is vital that employers review the working nature of their casual employees to ensure they meet the requirements of this work classification. If your casual workers appear to be working in a manner not consistent with a casual nature, you should discuss ways to fix this with your employee, perhaps through altering their employment contract to part-time or full-time employment.
Employees should firstly discuss their concerns with their employer if they feel they do not fall within the definition of a casual worker despite their classification under their employment contract. You should also consider seeking legal advice if you feel you are not receiving the correct entitlements.
Navigating employment law issues can often feel daunting and overwhelming. If you would like more information on how we can assist you in regards to your employment law concerns, do not hesitate to contact one of our employment law solicitors on 9963 9800 or at [email protected]. For more information, check out our blog here.