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19th September 2018

Casual employees with predictable and stable hours deemed permanent employees

The employee was engaged in writing as a casual employee in a coal mine, paid casual loading and paid well above the minimums within the Award.  However, the employee’s roster was incredibly rigid and in fact was published and set 12 months in advance.  The roster was a typical “7 day on, 7 day off” arrangement; not unusual in the mining industry.  The employee worked these shifts for his entire period of employment with the employer.

When the employee eventually left employment he was, understandably, not paid annual leave or notice of termination.  He applied to the Federal Circuit Court and was partially successful in being paid his claimed annual leave.

On appeal to the Full Federal Court, it was found that the employee had a “firm advance commitment to continuing and indefinite work, according to an agreed pattern of work” and this is contrary to the commonly understood concept of casual employment.

Whereas typically, casual employees have irregular patters of work, uncertainty as to the period over which employment is offered, discontinuity and intermittency of work and unpredictability.

The Fair Work Act does not include a definition of “casual employment” but does include a definition of what a “long term casual employee” is.  A long term casual employee is someone who has been employed by the employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months”.

The Full Federal Court said that the mining employee was not a “long term casual employee” because he had a “mutual commitment to continuing work on an agreed pattern of hours”.

The employee was awarded annual leave.  The question of any penalties being imposed on the employer has been remitted to the Federal Circuit Court to determine.

Considerations For Employers Who Engage Long Term Employees as “Casuals”

Employers should consider the following:

  • Are your casual employees engaged in writing as “casuals”?
  • How far in advance are your employees rostered to work?
  • How regular are your casual employee’s working patterns?
  • Are your casual contracts clearly expressed to include 25% casual loading?
  • Amending casual contracts to ensure that if this situation does arise, the casual loading can be set-off against annual leave entitlements.

If you believe that this case raises particular concern for your business please contact Michael Waters on 07 41545510 or to discuss further.