‘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:

1. The view of the parties (intent) as express in the contract (contractual documentation);
2. The definitions or descriptions of the word “casual” in the relevant Award or Enterprise Agreement; and
3. 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. 

We are asked on occasion to assist with information regarding Union right of entry and from time to time we come across interesting court cases that show what has been requested, what has been challenged and the court findings.  For example:

Extracts from the decision regarding the matter of CFMMEU v BHP Biliton [2018] FCAFC 107 in which the court dealt with the meaning of ‘mealtimes or other breaks’ for the purposes of section 490 (2) of the Fair Work Act.

Section 490 (2) gives a permit holder the right to enter work premises during working hours to “hold discussions” with employees.  those discussions may be held “only during mealtimes or other breaks“.

The issue that arose in this matter was whether a discussion held at work premises between the employee and a permit holder (Union) before the employee commences work is held during a “break” for the purposes of the Act.

The Union argued that permit holders may hold discussions with employees at all times, during the working hours of the premises, when the employees are not working; including before they have started their shifts.  The employer argued that permit holders could only hold discussions at times when the employees are not working during their working hours and that it does not extend to times before or after their shifts.

The CFMMEU was issued with an entry permit under section 512 of the Fair Work Act.  On 12 October 2015, they gave written notice to the employer of their intention to “hold discussions with any employee who performs work on the premises“.

Upon receipt of the notice, the employer asked the Union whether they wanted to hold discussions with the company’s employees or with their contractors, and, if so, which ones.

The Union responded that the “intent at this stage is to … visit members and potential members for the period between 0515 and 0630 and during their crib and meal breaks.”  The employer replied, telling the Union that “there are no breaks, crib or meal times between 0515 – 0630 and that they will not be able to facilitate a [right of entry] at this time“.  They were also told that “crib times for employees” were “Smoko – 9am, 3pm. Lunch Midday”.

The Legal Proceedings

In March 2017, the CFMMEU commenced a proceeding seeking the imposition of penalties and declarations that the employer had contravened section 501 of the Act, in substance, by refusing entry in the circumstances set out above.

The Union argued that the entitlement to enter premises “during mealtimes or other breaks” means that permit holders may enter premises to hold discussions with employees at any time that the employee is at work and not working.  The Union further argued that “break” means not only a break within working hours (such as morning tea, lunch, afternoon tea, “smoko” or “crib”) but a break between periods of work, such as times at which an employee is present at work, but not working.

The Findings

At first instance, the primary judge dismissed the application, principally because “the constraint implicit in the term “breaks”; namely a term which implicitly conveys the notion that there is a “break” in something which is otherwise happening, it not being possible to have a “break” during the working hours of an employee before the working hours of that particular employee or class of employee commences [or] after they have finished”.

This was confirm on Appeal where the Court found that the Union’s construction of section 490 (2) is untenable because a “mealtime or other break” is, as a matter of ordinary English, an interruption in the continuity of the employee’s employment.  Therefore, it must necessarily occur during, not before or after, working hours.

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