Workplace Relations

HIGH COURT DECISION FOR CASUAL EMPLOYEES

In 2020, the WorkPac vs Rossato case heard by the Federal court found that Mr Rossato was a permanent employee instead of a casual employee (as was detailed in an employment contract). This was due to the regular nature of work and ongoing rosters which were determined well in advance. Rossato had been employed by Workpac as a casual for six separate fixed-term engagements.

WorkPac appealed this decision and the case went to the High Court of Australia.

The High Court has now overturned the ruling by the Federal Court and found Mr Rossato was correctly employed as a casual worker.

The High Court ruled that a casual is:

“An employee who has no firm advance commitment from the employer as to the duration of the employee’s employment or the days (of hours) the employee will work and provides no reciprocal commitment to the employer”.

The High Court decision is welcomed by many employers and further supports the amendments made to the Fair Work Act 2009 regarding the casual definition. This decision and definition provides greater clarity about how employers can engage their employees.

Definition of Casual from Fair Work Act 2009

A person will be deemed a casual employee: • if an offer of casual employment is made on the basis that the employer makes no firm advanced commitment to continuing and indefinite work according to an agreed pattern of work; and • the employee accepts that offer.

In addition to the above definition, at the time the offer of casual employment is made, the following is to be considered: • whether the employer can elect to offer work and whether the person can elect to accept or reject work; • whether the person will work only as required; • whether the employment is described as casual employment; and • whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer.

The casual definition also includes a mechanism requiring employers to offer casual employees the choice to become permanent if they’ve been employed for 12 months (some Awards may stipulate six months) and have worked regular and systematic patterns in the last six months.

For assistance on the type of employment options for your employees, give our Workplace Relations team a call on 07 3273 0800.

Article written by Emma Ross, MPAQ Human Resourses Advisor and Office Coordinator

PLUMBING BUSINESS FINED UP TO $6,600 AFTER NOT PAYING EMPLOYEE FOR 10 DAYS’ WORK

A sole trader in Western Sydney had an 18-year-old working for the business for a 10-day period in November 2020. The employee lodged a wage claim as the young worker was not paid correctly for this work.

After an investigation, the Fair Work Ombudsman (FWO) issued a compliance notice for the Sole Trader to pay the young worker the casual minimum rate including relevant allowances for the 10-day period of work.

The Sole Trader failed to comply with the compliance notice, which required him to calculate and back pay the worker’s entitlements.

The FWO has now commenced legal action in the Federal Circuit Court again the sole trader and this business could face fines of up to $6,600 plus the back payment of relevant wages to the young worker.

This case is a further reminder, that if a wage claim is raised by an employee, it is very important for the business to work with the FWO to try and resolve the issue as the fines for non-compliance with a compliance notice gest very costly, very quickly.

Contact our Workplace Relations team for any assistance with a wage claim or queries on rates of pay.

Article written by Emma Ross, MPAQ Human Resourses Advisor and Office Coordinator

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