‘It all started with Casual Relationship’
In the recent matter of Workpac Pty Ltd v Skene; the Federal Court examined the meaning of ‘Casual Employee’ for purposes of section 86 of the Fair Work Act ( Entitlement to Annual Leave)
The court said that in determining the nature of the employment relationship, the court will look objectively at the actual way in which the work was performed.
The mere fact that the employee is receiving casual loading is not decisive; the court said:
“The payment by the employer and the acceptance by the employee of a casual loading, like the description of the type of employment given by the parties in their contractual documentation, speaks to the intent of the parties to create and continue casual employment. But the objective assessment will need to consider whether that intent has been put into practice and if achieved, has been maintained.”
The court made the following observation on the topic of ongoing employment;
“indefinite work (subject to rights of termination) according to an agreed pattern of work will ordinarily demonstrate a contrary intent and the existence of on-going full-time or part-time employment rather than casual employment.”
The fact that the parties agree to engagement by the hour or payment per hour would not assist in determining if the employment was regular or systematic.
The court also said that:
“The key indicators of an absence of the requisite firm advance commitment will be irregularity, uncertainty, unpredictability, intermittency and discontinuity in the pattern of work of the employee in question. Those features will commonly reflect the fact that, whilst employed, the availability of work for the employee is short-term and not-ongoing and that the employer’s need for further work to be performed by the employee in the future is not reasonably predictable.”
Relevant factors that the court will look at may include:
- The view of the parties (intent) as express in the contract (contractual documentation);
- The definitions or descriptions of the word “casual” in the relevant Award or Enterprise Agreement; and
- Actual patterns of work.
This decision reaffirms the fact that the mere classification of an employee will not determine the actual status of the employee.