‘ Casual’ employees not set in stone

THE Full Federal Court has recently ruled that a mining worker engaged under an employment contract as a “casual” employee was, in fact, a permanent employee.

They were then entitled to permanent employee leave entitlements under the National Employment Standards, in addition to the casual loading they received.

This is sending shockwaves through many businesses with a casualised workforce. Employment lawyers have always known that casual employees who have set regular hours could potentially be treated by the courts as permanent em- ployees. This decision brings that concern into sharp focus.

The arrangement considered by the court involved a dump truck driver employed as a “casual” under their employment agreement. The Full Court made clear the National Employment Standards override any employment contracts or enterprise agreements that do not comply.

For an employee to be truly casual there should be no firm prior commitment on working days or continuing work or longstanding pattern of work.

The judges commented that casual employment typically involves irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability. This places many employers at risk where they have longstanding steady “casual” employment arrangements with set rosters.

If employees are treated by their employer as being casual workers and are found to be permanent employees despite receiving a casual loading, they may be able to “double dip” to claim permanent leave entitlements.

In some instances, long service leave and redundancy entitlements may arise. Paying a casual loading does not get the employer off the hook.