Factual Background. WorkPac operated a labour hire business which employed Mr Skene as a dump-truck operator. Mr Skene was provided with a "Notice of Offer of Casual Employment" and executed a document titled "Casual or Fixed Term Employee Terms & Conditions of Employment". He was firstly employed at Anglo Coal. Subsequently, he was placed at Rio Tinto's Clermont mine, where his hours were 12.5 hours per shift, seven days on, seven days off. He was provided with a 12-month roster in advance and worked in accordance with his roster. This case concerned whether or not Mr Skene was a casual employee.
Legal Background. The Full Court in Hamzy v Tricon International Restaurants t/a KFC (2001) 115 FCR 78 considered that the predominant and essential indicator of casual employment is the "absence of a firm advance commitment as to the duration of the employee's employment or the days (or hours) the employee will work". The key indicators of an "absence of firm advance commitment" are irregularity, uncertainty, unpredictability, intermittency and discontinuity in the pattern of work of the employee in question.
In Fair Work Ombudsman v Hu (No 2)  FCA 1034, Rangiah J observed that a strong indication that the employees were engaged as casual employees was that their "days and hours of work were not fixed and were dependent upon [the employer's] labour requirements". The payment of the employer and acceptance by the employee of casual loading may demonstrate an intention by the parties to create a casual relationship, but it is not determinative. An objective assessment must be made of the relationship which considers whether the intent has been put in place.
Decision. The Federal Court concluded that Mr Skene was not a casual worker and was entitled to payment of annual leave entitlements upon the termination of his employment. The Court found that the fact that Mr Skene had been paid as a casual employee at a casual rate did not prevent him from also receiving employee entitlements on termination.
Lessons for Employers. This decision is a significant warning to employers about hiring employees on a casual basis in circumstances where the employment relationship is not actually casual. Employers should regularly check that the characterisation of the employment relationship accurately reflects the predictability and continuity of the hours worked. Employers should note that even if they pay employees a casual loading, employees may still be able to bring a claim for annual leave payments upon termination if it is found that the employee was incorrectly classified as a casual.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.