Possible Casual Employee Entitlements to Leave

Public news

A recent decision by the Full Federal Court in WorkPac Pty Ltd v Skene [2018] FCCA 3035 has raised the possibility that some casual workers may be eligible to leave entitlements. The case concerned a casual worker who was a fly in, fly out employee at a mine.

Due to the term “casual employee” not being defined in The Fair Work Act, the full Federal Court determined the common law definition of a casual employee applied and described it as:

“…the essence of casual employment is the absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work, but that is not inconsistent with the possibility of the employee’s work pattern turning out to be regular and systematic.”

The Court further found that the key factors in determining if there is a casual employee relationship are:

  • What is the understanding of the employment relationship between the parties?
  • Is there a commitment to ongoing work?
  • Are the worked hours or days regular in nature?
  • Are they paid an hourly rate for the hours they have actually worked?
  • Is there any indication that the rate of pay encompasses leave entitlements?
  • Are they paid for absences?
  • Is there a right to refuse an offer of work?

  • Where a casual employee is an ongoing and systematic one, that being a casual worker who has consistent set hours and days and has the knowledge that their work will continue at least in the near future, they are a high risk of being eligible to leave entitlements.

    In order to limit your liability it is important to make it clear that the employment relationship is casual in nature and does not give any expectation of future work.

    The following steps are suggested to be implemented to limit your liability from possible casual employee claims to leave entitlements:

    1. Issuing clear employment contracts

    2. Meeting casual conversion obligations

    3. Issuing rosters that reiterate the causal nature of the work

    4. Separate casual loading on payslips

    5. Require each employee to accept each offer of work in writing before commencing

    It is highly recommended members attend our payroll training on October 10 August 2018 so that we can go show you how to address this issue as well as advise on other common issues in the industry.

    If you would like to register your interest in this course please call contact the MTA’s Workplace Relations team by clicking here or by calling 8291 2000.