By Mark Curran (Partner, DWF Australia)
It is not uncommon for employees to be engaged as casuals but then be treated like full- time employees, for example, being required to work 38 hours a week consistently. Two recent decisions have highlighted the risks of this practice and classified employees, ostensibly engaged as casuals, as permanent employees at law, thereby entitling them to annual leave.
In Apostolides v Mantina Earthmovers and Constructions Pty Ltd  FCCA 279, the applicant was employed as a fitter and diesel mechanic and then a crushing plant operator in a quarry at Kapunda. His employment ended in August 2015, when he was dismissed. The applicant worked a minimum of 38 hours per week on a regular and systematic basis and a considerable amount of overtime. The applicant claimed that he had been hired as a permanent employee and was therefore entitled to annual leave.
There were no written terms of the applicant’s engagement when the employment commenced in 2000 and the Managing Director who engaged the applicant had since deceased. The applicant said that he had been told he would be employed “full time” at a “flat rate”.
The Court ruled that the applicant was entitled to accrued annual leave and payment in lieu of notice. It was held that the applicant was a permanent employee until at least 2007 under the Quarrying Industry Award. The award provided the contract of hiring of every employee was deemed to be a contract of hiring by the week (equivalent to a permanent employee) in the absence of a contract in writing to the contrary. As there was no such contract, the deeming provision applied, such that the applicant was a permanent employee.
Post 2007, the applicant’s employment was regulated by an AWA which did not define his employment as permanent or casual and was therefore ambiguous. This paved the way for extrinsic evidence to be received as to the surrounding circumstances, including:
- The applicant worked consistent and regular hours of at least 38 hours per week, plus overtime.
- The employer expected the applicant to be available for work at least 38 hours in each week and for additional overtime.
- There was no evidence the applicant was paid a casual loading of a particular percentage.
- The applicant was not paid for annual leave or public holidays.
After considering the definitions for full-time and casual employment in the AWA, the court found that the definition of full-time employment, which referred to being required to work an average of 38 hours per week plus reasonable additional hours, was satisfied.
This decision is similar to that in Skene v Workpac Pty Ltd (2016) 68 AILR ¶102-714;  FCCA 3035, where an employee specifically engaged as a casual employee, who worked regular shifts determined 12 months in advance on a FIFO basis, was held to be entitled annual leave under the Fair Work Act 2009. This was because the employee’s casual status under the relevant industrial instrument was not definitive of their status under the Act and common law principles could be applied to determine if the employee was a casual. In that regard, the essence of casual employment was missing, because of the predictable nature of the employee’s shifts.
These cases are a warning to employers that, in some circumstances, engagement of an employee as a casual in accordance with the definition of casual employment in an industrial instrument will not completely insulate them from claims for entitlements associated with full-time employment. If such employees are treated like full time employees, for example, being regularly engaged to work 38 hours a week, there will be a risk of claims for entitlements being made.
This article first appeared on the DWF Australia website and has been reproduced with permission.