Are Your Casual Workers Really Casual?
With job classification being a much talked about topic in recent news, employers are urged to check the true status of their casual workers’ to reduce the risk of high pay-out claims.
Latest case on casual worker status
A small construction business in South Australia has been ordered by a Federal Circuit Judge to pay a former staff member 15 years’ worth of annual leave due to wrongfully determining the workers employment status as casual. Details of the Apostolides v Mantina Earthmovers & Constructions Pty Ltd (2018) FCCA 279 case have been spread across the media, but the main points highlighted are:
- • There was no written contract of employment when the employee commenced work in 2000. Therefore, under the Quarrying Industry Award, the employee was found to have been a weekly hire which is classed as a permanent post.
- • There was no indication of his job classification on his payslips.
- • He worked regular, full-time hours throughout the whole 15 year duration and didn’t feel he had the option to decline work or not show up for work, as could be the case if he was genuinely ‘casual.’
- • Employee was not paid for public holidays over the course of his employment.
- • Employer claimed that they paid a 20% casual loading fee. However, there was no evidence of this payment on the payslips and in any case, the fee should have been 25% in-line with the Pre-Modern Award and Australian Workplace Agreement (AWA) stipulations.
- • The employee’s hours of work were 38 hours per week plus reasonable additional hours, which matched the definition of a full-time employee in the AWA.
Sally McManus, Secretary of the ACTU has been quite vocal about protecting vulnerable workers from ‘casualisation’ by urging people to make a stand against it and The Fair Work Ombudsman reported a 66% increase in fines across 2017, including employer assumptions on the employment arrangement.
These claims can lead to deeper issues of Unfair Dismissal claims should the contract be terminated while under the wrongful view that the worker isn’t permanent. If you are engaging a worker for regular hours over a lengthy period then there is a risk that the worker should be classified as permanent, regardless of what is stated on a pay-slip.
Organisations with casual workers need to take note
This decision highlights the importance of checking the specifications for the role and the substance of the employment relationship rather than just based on what the employer wants to classify the role as.
It’s important to make the terms of a workers engagement clear from the very beginning of the work relationship and be consistent with those terms throughout employment. If any changes occur, the contract of employment will need to be revisited and revised.
If you have casual workers on your company books who are not covered by an award or agreement, you will need to assess the true nature of the relationship.
If you require an audit on you casual workforce or need assistance in reviewing and amending contracts, please do not hesitate to get in touch with Human Resource Services on 07 5530 1571.
