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A win for casual employees - Federal Court hand down decision

In August of this year, the Full Federal Court handed down a decision in Workpac Pty Ltd v Skene [2018] FCAFC 131, which is a great win for casual employees in Australia.

Following the landmark decision, ‘permanent casual’ employees may be eligible to claim those entitlements that arise out of a typical full-time employment relationship.

The decision made clear that employers seeking to avoid paying workers their entitlements cannot merely rely on categorising workers as ‘casuals’ and paying them a casual loading. In essence, employers cannot “create something which has every feature of a rooster, but call it a duck and insist that everybody recognise it as a duck.”

The decision is significant in that it overturned a recent line of authority from the Fair Work Commission that said that it is sufficient to classify an employee in accordance with the terminology in the award/enterprise agreement and pay the requisite casual loading. The cases generally held that if this occurred then the employee was casual (and not entitled to the benefits of full-time employment) no matter how permanent their employment was.

In deciding if an employee is casual or in reality permanent, the Courts will look at whether the employee maintains a regular and predictable pattern of work and if there exists an ongoing expectation of work. If these factors are present it is more likely that the employee is really a permanent employee.

Where one’s employment is deemed to be permanent, there may be an entitlement to personal and annual leave privileges, a requirement to give notice of termination and prospective redundancy entitlements.

If you believe you are entitled to further employee entitlements as a result of the decision handed down by the Federal Court, Shine Lawyers Employment Law experts may be able to assist. Through our tailored initial consultation service, our employment lawyers will inform you of all your legal rights and empower you to take the course of action that best suits you.

It is important to note that the case is still within the appeal period and Workpac Pty Ltd has indicated that they will appeal the decision to the High Court of Australia.

Written by Shine Lawyers. Last modified: September 12, 2018.

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