COVID-19 Updates

Casual Employment: Legislative Action Needed

Casual Employee Law

On 20 May 2020, the Federal Court ruled in the case of WorkPac Pty Ltd v Rossato that casual workers who have regular and ongoing work have a right to claim paid annual leave, personal/carer’s leave and compassionate leave and payment for public holidays in addition to the casual loading.  The ruling also states that in the circumstances of the case the employer couldn’t offset the casual loading paid to casual employees to reduce their liability for paid leave.

This landmark court decision upholds the key principle of the August 2018 WorkPac v Skene decision that work which is regular, on-going and permanent in nature is not ‘casual’ employment

NatRoad calls on the federal Government to act to change the law. CEO of NatRoad, Warren Clark said that he welcomed the reported comments of the Attorney-General, Christian Porter, flagging possible legislation action.

“We agree with the Attorney General that the court’s decision will have an impact on many companies that are already struggling due to the coronavirus pandemic. There is a need for urgent legislative reform to provide certainty to businesses and casual employees.

“We urge members to review their casual employment relationships.  The main problem from the case is that no matter the provisions that apply under modern awards or enterprise agreements, if an employee has a regular and predictable pattern of work with an expectation of ongoing engagement, a firm advance commitment, they are unlikely to be casual employees under the law.

“Where members have engaged a person as a casual employee, road transport operators should ensure that they have a written contract of employment that identifies them as casual and ensure that the casual loading is clearly shown as a separate monetary amount on the employee’s payslip.  Whilst the loading was not able to be offset against the leave entitlements in the current case, the documentation of the casual relationship remains important.  But if there is a regular and predictable pattern of work, then consider changing the casual employee’s employment status to part-time or full-time or employment for a fixed period.

“NatRoad understands that many casual employees wish to be casual because it gives them flexibility and a higher rate of pay.   Therefore, it is also important to record any discussions with a casual employee about converting to part-time or full-time employment where the employee chooses to remain casual.  However, such an employee can change their mind at any time and these arrangements need to be carefully managed.

“It is important for all road transport operators who employ long term casuals or casual employees who have a firm advance commitment to seek advice. Our advisers can help.

“In the meantime, we will continue to support the federal Government in its consideration of a change to the law,” Clark concluded.