Casual Employees Potential Entitlement to Leave

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The court held that despite the fact the employee was initially engaged as a casual worker under their employment contract and paid a casual loading, the nature of the employee’s regular predictable working arrangements meant he was an employee who was entitled to paid leave entitlements. As such, the court ruled he would be entitled to paid leave entitlements under the National Employment Standards such as paid annual, personal/carers and compassionate leave, plus payment for public holidays during Christmas shutdowns.

The case upholds the precedent set out in WorkPac v Skene [2018] FCAFC 131 and this decision could allow regular shift working workers who have been receiving the 25% casual loading to potentially also be able to claim benefits such as paid personal leave and annual leave.

There is potential for this ruling to be appealed and should it be, Industrial Relations Minister, Christian Porter, has indicated the Federal Government would consider intervening. Additionally he also stated the possibility of exploring legislative options in order to deal with the issues created by this ruling.

In light of the ruling however it is important to again emphasise the need for proper documentation confirming the casual status of an employee and that they are being paid the appropriate casual loading to offset leave entitlements. Employers also need to emphasise to their casual employees that they are not guaranteed ongoing hours of work as this is contrary to the nature of casual work.

Lastly, employers need to be aware of their obligations regarding the offering of casual conversion to regular and systematic casual employees. Under the Vehicle Manufacturing, Repair, Services and Retail Award 2010, there is the need to offer conversion after they have had 6 months service with an employer or after 12 months where agreement exists. An employer within 4 weeks of the employee attaining the period of 6 months (or 12 months service) needs to notify them of their ability to convert to permanent employment if they wish.

Under the Clerks – Private Sector Award 2010, Road Transport and Distribution Award 2010 and Passenger Vehicle Award 2010 the casual work has to be regular and systematic for a period of 12 months. In contrast to the Vehicle Award, an employer is only required to provide them with an extract of the relevant section covering conversion from the award at any point during their first 12 months of employment and it is up to the employee to request conversion.

Members should contact the Workplace Relations Department of the MTA at wr@mtasant.com.au or on 8291 2000 if they wish to discuss any of the above further.