SAWIA Notice - Implications of employing casual workers

This SAWIA Notice outlines what you need to do about any existing casual employees you hire in the vineyard & what you need to do in future when hiring casual employees.

In a controversial decision the Full Federal Court has held that a casual employee employed by a
labour hire company in the mining industry in fact is not a casual employee, but a permanent
employee and therefore entitled to paid annual leave. (Workpac Pty Ltd v Skene [2018])

This decision is relevant to all employers engaging casual employees, regardless of industry and
regardless of whether the relevant Modern Award or Enterprise Agreement provides for casual
conversion.

The decision means that employers cannot simply rely on the use of the term “casual employee” in
their relevant contract (verbal or written), Modern Award or Enterprise Agreement, but must ensure
that a person engaged as a casual works in a way that meets the characteristics of a casual employee
at all times.

FACTS OF THE CASE
The employee was engaged as a casual fly in, fly out worker by a labour hire firm in the mining
industry for two periods totalling two years. The following key facts were established:

• Set roster given for the next 12 months in 2011 and 2012;
• The employee had no choice in the daily working arrangements with no opportunity to elect to work or not work certain days, given the fly in, fly out arrangement;
• There was an expectation that the employee would be available on an ongoing basis to the perform the work until the assignment was completed;
• No significant fluctuation in working hours from one day, one week, one month or one year to the next. The hours of work were regular and predictable, with the occasional stand down; and
• The employee was paid a flat rate, but no express reference that it included the casual loading.

MEANING OF CASUAL EMPLOYMENT
The Court held that the definition of “casual employment” included in a Modern Award or Enterprise Agreement is not the appropriate mechanism to determine whether an employee, in reality, is casual. Instead, whether an employee is casual is based on an overall assessment of the key characteristics of casual employment.

Key characteristics of casual employment, includes:

• Views of the parties: Whether there is evidence, including a contract of employment, that both parties intended for the employment to casual;
• No commitment to ongoing employment;
• Fluctuation and variability of hours or days of work: The more regular days and hours of work, the less likely the employment is casual;
• How the worker was notified of each period of work;
• The payment of an hourly rate for hours actually worked;
• Any indication that the hourly rate was intended to encompass leave entitlements;
• The absence of payment of the benefits associated with ongoing employment, i.e. leave; and
• The employer’s and the worker’s right to refuse to offer or accept further work.

This means that an employee engaged and paid as a casual employee under the Wine Industry Award 2010, but where the characteristics point to permanent employment, will be held to be a permanent employee and not a casual employee.

Find out what you should be doing about protecting your business when it comes to your existing casual employees and any casual employees that you will be taking on for vintage 2019.

Give Henrik or Sarah a call or attend one of SAWIA's upcoming sessions in Barossa on 5 December 2018 and McLaren Vale on 6 December. The session is great for anyone who has responsibility for employing or managing casuals (including rostering).

Find out more here.

FURTHER INFORTMATION AND ADVICE

For further information and advice, please contact either of the following:
- Henrik Wallgren: 8222 9270 or [email protected]
- Sarah Hills on 8222 9212 or [email protected]