Aug 17th, 2018
A truck driver employed at a Rio Tinto mine under a labour hire arrangement as a casual, has been granted annual leave in a landmark ruling by the full Federal Court of Australia. It has been ruled that he in fact was not a casual because of his regular and continuous pattern of work.
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The Fair Work Act does not provide a clear definition of casual employment but does stipulate that a casual employee is not entitled to paid annual or sick leave as permanent employees are. This case has sparked warnings from unions and employer groups that a clearer definition of casual employment is needed.
The Australian Industry Group has said the decision was “disappointing” and has asked the federal government to intervene to clarify the law. Australian Industry Group CEO Innes Willox said the widespread industry practice was that “an employee who is engaged as a casual and paid as a casual, is a casual for the purposes of award and legislative entitlements”. He said that a “sensible step that should be taken without delay, is for Parliament to move to protect businesses and jobs by amending the Fair Work Act to clarify that an employee engaged as a casual and paid as a casual is a casual for the purposes of the Act. This is the standard definition of casual employment, and the only workable definition”.
“The interpretation of the Fair Work Act that the Federal Court has adopted is inconsistent with industry practice and will potentially lead to a great deal of uncertainty for businesses. This in turn will not be good for jobs, including for young people who rely heavily on casual employment,” he said.
While welcoming the federal court’s interpretation, the Australian Council of Trade Unions has requested a clearer legal definition of casual employment.
University of Sydney Labour Law professor Shae McCrystal said another solution was to look at the way awards and agreements allowed employers to hire people and pay them as casuals when they were not working as casuals, but as permanent employees.
"This is the first time the full federal court has said that the definition of casual under the national employment standards does not depend on how someone has been classified for the purposes of their engagement under an award or agreement," she said.
A spokesman for Workplace Minister Craig Laundy said he was “reviewing the decision carefully, including any broader implications".