New rules for ca­sual driv­ers

Land­mark case gives truck­ies more pro­tec­tion and power to choose

Big Rigs - - BIG RIGS | SPECIAL REPORT - Bruce Honey­will

THE land­scape of truck driver em­ploy­ment has changed for­ever, fol­low­ing a re­cent judg­ment of the Fed­eral Court of Aus­tralia.

The judg­ment will have lit­tle bear­ing on the ma­jor­ity of truck driv­ers who are em­ployed per­ma­nently ei­ther un­der award con­di­tions or with EBAs, with hol­i­day pay, su­per­an­nu­a­tion and other ben­e­fits.

But things will change sig­nif­i­cantly for the large sec­tor of the driv­ing com­mu­nity work­ing un­der ca­sual work agree­ments.

And em­ployer as­so­ci­a­tions are not happy about the Fed­eral Court judg­ment.

“Dou­ble dip­ping” they cry in the busi­ness press, say­ing the truck driv­ing judg­ment will af­fect the em­ploy­ment of ca­sual work­ers across the board, in re­tail and hos­pi­tal­ity.

One busi­ness news­let­ter re­ported: “The Aus­tralian Cham­ber of Com­merce and the AI Group claim po­ten­tial side ef­fects of the rul­ing have the po­ten­tial to cost busi­nesses ‘bil­lions’ of dol­lars”.

“Dy­na­mite con­se­quences for busi­nesses em­ploy­ing ca­sual work­ers,” cried an­other busi­ness jour­nal, claim­ing small and medium en­ter­prises could be li­able for mil­lions of dol­lars in back pay­ments.

Many truck driv­ers, both in dis­tri­bu­tion and long haul, are em­ployed un­der ca­sual em­ploy­ment agree­ments.

Ca­sual em­ploy­ment agree­ments are com­mon with labour-hire com­pa­nies that sup­ply flex­i­ble or short term de­mand for driv­ers to many big trans­port com­pa­nies, in­clud­ing Toll.

Ca­sual em­ploy­ment ap­peals to some driv­ers who en­joy the flex­i­bil­ity avail­able to both the driver and the em­ployer.

But there have been many cases of abuse of the ca­sual em­ploy­ment sys­tem by em­ploy­ers made pub­lic over the years.

With a pend­ing elec­tion, Bren­dan O’Con­nor, the shadow in­dus­trial re­la­tions min­is­ter, has the cross-hairs on the labour-hire busi­ness if La­bor wins gov­ern­ment this year and likely a re­view of ca­sual em­ploy­ment will be part of his new re­mit.

In the re­cent court cases and ap­peals, it be­came clear that there is not an ac­cepted fit-all def­i­ni­tion of just what is a ca­sual worker.

Ca­sual Em­ploy­ment un­der the Fair Work Act

Un­der the Fair Work Act there are three types of em­ploy­ment: per­ma­nent, per­ma­nent part-time and ca­sual.

Ac­cord­ing to the Fair Work Om­buds­man, a ca­sual em­ployee does not have a firm com­mit­ment in ad­vance from an em­ployer as to how long they will be em­ployed for.

A ca­sual em­ployee has no guar­an­teed hours of work, usu­ally works ir­reg­u­lar hours, doesn’t get paid sick or an­nual leave, can end em­ploy­ment with­out no­tice un­less no­tice is re­quired by a reg­is­tered agree­ment.

Ca­sual em­ploy­ment is dif­fer­ent to full-time or part-time em­ploy­ment where em­ploy­ees have on­go­ing em­ploy­ment or a fixed-term con­tract and can ex­pect to work reg­u­lar hours each week.

They are en­ti­tled to be paid sick leave, an­nual leave and other ben­e­fits.

Ca­sual em­ploy­ees are en­ti­tled to a higher hourly pay rate than equiv­a­lent full-time or part-time em­ploy­ees called a “ca­sual load­ing” and is paid be­cause they don’t get ben­e­fits such as sick or an­nual leave.

A ca­sual em­ployee can change to a full-time or part-time em­ploy­ment at any time if the em­ployer and em­ployee have both agreed to it.

But a grey area has emerged when ca­sual work­ers are em­ployed in reg­u­lar time sched­ules over ex­tended pe­ri­ods of time.

This mid ground came un­der the mag­ni­fy­ing glass in the re­cent court judg­ment and the courts iden­ti­fied an ad­di­tional em­ploy­ment cat­e­gory the courts have named “other than a ca­sual em­ployee”. So what’s this all about? When is a ca­sual em­ployee not a ca­sual em­ployee?

That’s what this court case was all about.

Truck driver Paul Skene took a job as a dump truck oper­a­tor and was em­ployed by labour-hire com­pany WorkPac Pty Ltd.

Dur­ing 2010 he worked on the An­glo Coal op­er­a­tion in the com­pany’s Cen­tral Queens­land op­er­a­tion.

From April to July in that year he worked a seven-day-on, seven-day-off work sched­ule in a drive-in-drive-out ar­range­ment.

That meant that Skene had a six-hour drive to and from work for each seven-day stint.

Un­happy with that ar­range­ment, he ap­plied for an­other po­si­tion with WorkPac.

His job was again as a dump truck driver at a Rio Tinto mine near the Queens­land town of Cler­mont.

This time the job was fly-in-fly-out, a bet­ter ar­range­ment for Paul Skene as he held this em­ploy­ment from July 2010 un­til April 2014 when he was ter­mi­nated by WorkPac.

On ter­mi­na­tion he asked for pay­ment for ac­crued an­nual leave.

WorkPac re­fused the pay­ment on the un­der­stand­ing he had been em­ployed on a ca­sual ba­sis.

Even­tu­ally Paul Skene, through his lawyers, took WorkPac to court claim­ing the un­paid hol­i­day pay for the pe­riod of his em­ploy­ment.

His lawyers claimed that, by law, he was em­ployed by WorkPac on a full-time per­ma­nent ba­sis and that he was en­ti­tled to an­nual leave when his em­ploy­ment came to an end in 2014.

De­fend­ing the mat­ter in court, WorkPac claimed Skene was a ca­sual em­ployee and not en­ti­tled to an­nual leave and other en­ti­tle­ments.

The court found, un­der the Fair Work Act, that Paul Skene’s em­ploy­ment was as “other than a ca­sual em­ployee” and or­dered that WorkPac pay the driver nearly $28,000 in hol­i­day pay and in­ter­est on monies owed. The WorkPac Ap­peal WorkPac then ap­pealed the de­ci­sion to the Fed­eral Court of Aus­tralia.

The com­pany con­tested the court’s find­ings on one ground: that Skene was ac­tu­ally a ca­sual em­ployee un­der the Fair Work Act.

WorkPac sought or­ders set­ting aside the orig­i­nal court’s de­ci­sion to pay com­pen­sa­tion to the driver and to dis­miss the driver’s ap­pli­ca­tion.

Three se­nior judges sit­ting on the full bench of the Fed­eral Court de­liv­ered a 70-page judg­ment tak­ing in con­vo­luted le­gal ar­gu­ment and dredg­ing up a quag­mire of le­gal prece­dents of pre­vi­ous em­ploy­ment and work-re­lated cases.

The Fed­eral Court con­firmed that the cor­rect def­i­ni­tion of Paul Skene’s em­ploy­ment sta­tus was that he was a worker who was “other than a ca­sual em­ployee”.

It seems there is no cat­e­gory for ca­sual em­ploy­ment that has reg­u­lar shifts over long-term em­ploy­ment.

On Au­gust 16, 2018, the court or­dered that WorkPac’s ap­peal be dis­missed and the com­pany was or­dered to make the pay­ment.

Paul Skene’s counter ap­peal was al­lowed.

This was the judg­ment that opened the can of worms that cre­ated hys­te­ria among some em­ployer groups re­ly­ing on ca­sual em­ploy­ees.

Un­doubt­edly the judg­ment will lead to a re­view and amend­ments to the Fair Work Act and pos­si­bly a new em­ploy­ment cat­e­gory to re­place the le­gal sys­tem’s “other than a ca­sual em­ployee”.

PHO­TOS: CON­TRIB­UTED / FACE­BOOK

DRIVER IN CON­TROL: Ca­sual em­ploy­ment ap­peals to some driv­ers who en­joy the flex­i­bil­ity avail­able to both the driver and the em­ployer.

Bren­dan O’Con­nor.

A ca­sual em­ployee has no guar­an­teed hours of work.

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